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siPORTS Ol AIL CASE 



DBGIDBD 



IN THE SUPREME 




OF THB 



CAPE OF GOOD HOPE, 

DURING THB MONTHS OF JANUARY, FEBRUARY, AND 

MARCH, 1895. 

(WITH TABLE OF CASES AND DIGEST.) 



KhPORTED BT 



J. D. SHEIL, 



or THB IKKKR TBMPLB, BARBISTBa-AT-LAW, AND ADVOGATB OF THB 

BUPRBMB COURT. 



VOL. V.-PART I. 

(1896.) ^^ 



CAPE TOWN : 
pjimitien 41II> PUBLI8HBD AT THB •«GAPB TIMBS** OFFIGB, ST. GBOBGB*S ST. 



1896.^ 



TABLE OF CASteS, 



PAGE 

Abebohn'i Tnirtee ▼. Van der West- 

hQiscn ... ... ••• ... 67 

Alford, Wnis & Go. ▼. Brink 128 

AliDgi Bx portt -•% ••• •■• ••• 7 
Aliwil North Board of Executors (in 

liqaidation), re 141 

AndertoD ▼. Anderson 22 

Anderson's Executors y. Welgemoed ... 57 

Atmore ▼. Shaddock • ... 59 

Beedlo A CJo. (Limited), re ... 68, 76 

Beetbim y. Slamie 100 

Beojamin y. Benjamin 22 

Bergfauis, ex /Mir/« 14 

BladE y. La Grange and another ... 2 

Boalch y. Sehiemann 98 

Bordierds, ex parte 58 

Bosman, ev /Mirto 2 

Botha, ex jNirto 14 

Bndibrd y. Green and another 129 

Bnude y. Verdoes 104 

Brejtenhach y. Smuts' Executors and 

otbers •.. .*• ••• ... 59 

Burdett's Estate, re 19 

Barmeifter and others, ex parte* — Re 

"Ernestine" 68 

Bormeister y. Sehiemann 98 

Bams y. Town Council of Gape Town 82 

Ckpe of Gtood Hope Bank (in Hqnida- 

tron), re 71, 98, 129 

Clark, ex parte. — Re Clarke's Estate ... 59 

Clanenta A Co. y. Vau Rbyn 38 

Clementa A Go. y. Vos 38 

Ooetwe 7. Eriank 47 

Gblonial Orphan Chamber w. Stewart ... 128 
Oomhrinck & Go. y. Colonial Goyern- 
ment ••• ••* ... ... 105, 130 

Cook Bros. y. Colonial Goyemment, 

58, 72, 107, 140 

Da SUya y. Da Silya 19 

Bay y. Day 20, 87 

Be Beers Consolidated Mines y. Kim- 

berley Waterworks Co. ... 101 , 1 29 
De Wet, ex parte. — He minors Kruger . . . 71 



De Villiers, ex parte 

„ y. Van Dyk... 

Dickson & Co. (Limited), re 
„ y. Dickson ... 

Doe y. Brown 

Du Flessis y. Ferreira ... 



PAOB 
.. ... x4 

. . . . t 1 ^*f 

at ... X.A 

., 20,71,90 
... 79 



.•• 



Eagle, ex parte ••• ... ..> ... 11 

Ebden y. Botha 128 

Eilenberg y. Jacobson A Co 1 

Engel's Estate, re * ... 19 

Erasmus y. Moolman 98 

'* Ernestine," re 53 

Ferreira's Estate, re 19 

Field & Co. y. Wernikoflf 26 

Findlay & Co. y. Klaas and another ..• 129 
Forrester, ex parte, — Re Minors Starck 11 

Fossati y. Kleynhans .« 140 

Fraser y. Cunningham 58 

Freemantle y. Henning 6 

Frere Hospital, East London, ex parte 
Managers ... ... ... ... 10 

FumiyUll y. Corn well's Executors ... 14 

Greeff y. Pretorius 132 

Grundling's Executor y. Lategaan and 
others ••. ... ..« »*. 140 

HaarhofTs Insolyent Estate, re 140 

Haase, Vaughan & Co. y. Malcolm's 

L rustee ... ... ... ..^ ^cS 

Hartford y. Walker 70 

Hauptfleisch y. Hauptfleisch ... 38, 80 

Hearns y. Jackson ... 1.17 

Hiddingh y. Uys ... 98 

Hill Bros. y. Reich 68, 130 

Hope y. niario 136 

Hough's and Du Plessis, Ante-nuptial 

Contract, re ... ... ... ... 12 

Hudson, Vreede & Co. v. Cooper ... 129 

Hugo, re ... ••. •*• ••• ••• 59 

Humphries, ex parte 19 

Hyland y. Sehiemann 98 



Jacohsohn, ex parte 
Jansenyille Municipality, re 



... 



70 
8 






TABLE Of CASES. 



PAGE 

Jenner, rtf ^ 59 

Jones V. Town Council of Cape Towd... 27 



it 



V. Vickera* Trustee 



•t* 



... 34 



Kerdel v. Bam 25 

Kohler and others y. Baartman ..• 104 

Kruger, re ... ••• ••• ••• 2 

Kruger (Minors), re 71 

Lawrence v. Lawrence 105, 133 

Laws, ex parte ••• ... ... ... 7 

Le Roux's Estate, re 72 

Levenson, ex parte 2 

Levin ▼. Wassermann 1 

Lindenberg y. Naud^ ... 3 

London and SA. Exploration Co. y. 

G.W. Diamond Mining Co. ... 4 

Louw V. Kupke ... 14 

Malcolm's Truft^ v. Haase, Vaughan & 
Oo. ... ... ... ... ••• ^^ 

Malmesbury Board of Executors v. 
Basson ... ... ... ••• 128 

Mandy's Insolvent Estate, re 35, 105, 129 

Marais v. Binder 58 

Markham v. Frame 76 

Marsh V. Mannix ... 1 

Mason v. Mason ... ... •*• •.• 18 

Master v. Brink's Executrix 2 

„ V. Diemore's Executrix 128 

„ V. McDonald's Executors ... 58 

,, V. Nicholson's Trustee 3 

„ V. Prins' Executors ... 3, 19 

McCahy V. Williams 136 

McGibbon, ex parte 35 

McGrath v. McGrath 20 

McKenzie & Co. v. Schiemann 98 

McLaren & Co. v. Smidt... 98 

Meiring's Estate, re 57 

Minto, ex parte 99 

Myburgh, ex parte 2 

Myburgh's Assignees v. Tayldr ... 2 

Newman v. Mayor of East London ... 41 
Nolte and another v. Registrar of Deeds 105 
North Eastern Bultfontein Co., re ... 9 

Oakeshott's Trustee v. Bank of Africa 68 
vtto, re ... ... ... *•. ... jLaw 

Parkin v. Lippert ... 65, 129, 141 

f^etersen y. Frame and Wife ..t ..• 1 



Peterson v. Biocard 

Pienaar v. Rattray 

Pilgram, ex parte 

Pretorius v. Greeff 

Prince, Vintcent & Co. v. Landau 
Provident 1. &!. Co., re 



PAGE 

.. 2 
.. 67 
.. 2 

19,99 

'.. 57 
.. 2 



n 
»» 



It 



It 



V. Vyfer and Jaftha 
V. w are ... • • . 
V. Wessels 
V. Williams 



„ V. Zwart and Jantjes 
Roberts v. Roberts 



Raphael, 62 /Kirte ... ... ... ... 98 

Regina v. Abraham and others 66 

Regina v. Blauwveroi 53 

V. iwiaas ... ... .*• ... sF 

V. Kock ... ... ••. ••• 80 

„ V. Neethling 65 

„ V. Sym ... ... ..» ... 18 

,, V. V laK ... ••* ••• ... oo 

„ V. Vyfer and Jaftha 66 

... ... ^x 

... ... • 

... %•• ^v 

... ••• i4U 

... ... Oi 

Rodger's Executors v. Jesbop 95 

Rosenthal, «x />arto 34 

Ross V. Farmer 3, 13, 24 

„ &Co. V. Lotze 129 

BxMBOUW, ex parte 2 

Roux*8 Estate, re ... 72 

Rowe's Insolvent Estate, re 90 

KuBseWf ex parte 58 

Schmidt v. Schmidt's Executors 71 

Scholtz V. Du Plessis 2 

Scott V. Dodwell 129 

Searle & Sons V. Uorsfiill 14 

Sbarpe, ex parte 139 

Short St Co. V. Schiemann 98 

Simons v. Simons 94 

Slabber's Insolvent Estate, r« ... ... 60 

Slabber V. Meezer's Executor 130 

Slebusch, re 20 

Smith, ex parte, — Re Titterton's Eistate ... 17 
Smith V. Smith 20, 99 

„ V. Theron 128 

Smuts' Trustees v. Van Zyl's Executors 91 

Spies (Minors), re 36 

Steenkamp's Executors v. Wiese ... 60 

Steyn's Trustee V. Gous 140 

Stockdale v. Van Zyl & another ... 14 

Stoifels V. Mills & Rtthman (Limited)... 29 

Btonej, ex parte lo 

Strasburger y. Trebor Fr^res ... ,,, 7^ 



TABLE OF CASES. 



Slijdoin y. Strydoni's Troi^tee 

Stmumfto, TV ••• ••• ••• ••• 

Tibata aod others, ex parte 

Taonant y. Nortje 

Thwaits y. Brand. •• ••• ••• ••. 

Town Council "v^. Smots 

Tnatmaon y. Imperial Fire Assurance 
v/0> ••• ••• ••• •■• ••• 

TtcwBTf ex parte •«. ••« •■• ••■ 



. 140 
. 71 

. 71 
. 98 
. 14 
. 2 



68 
36 



Trutcr y. Trmter .. 



14, 80 



Union Gold Mining Co., re 

Van Aardt y « Jefferson 

Van Bloemtfien v. Orchard 

Yaa der Westhoizen y. Cohen Bros. . 

Van Ejsseo, ex /Mirfe 

Tan Hoeyen*8 Execntore y. Jacobs' Exe- 
cutorVa*. ••■ ••• ••• 

Van Koorden y. Myhurgh 
y. Van Zyl 



»» 



2 

1 

14 

56 

14 

98 

1 

100 



Van Ryn W. & 8. Co. y. Botes 
Van Staaten, ex parte 
Van Vuaren's Insolyent Estate, re 
Van Wjk's Estate, re ... 
Vickers* Insolyent Estate, re 
Visser y. Du Flessis 

Wardel y. Krynauw 
Whittingv. Whitting ... 
Whittle, ex parte ... 
Willems y. Willems 
Wills y. Laubmeyer and Wife 
Wilson, Son & Co. y. Klerk 
„ „ y. Millen 

Wolff V. Solomon's Truitee 
Woolfs Insolvent Estate, re 
Wynberg In&nt School, ex 
Managers ... ... 

Zeederberg & Co. y. De Villiers 



PAOB 


••• 


14 


... 


14 


a*. 


6S 


... 


72 


... 


3 


... 


2 


... 


31 


... 


ISO 


... 


129 


• • • 


129 


... 


98 


... 


2 


... 


2 


72, 


105 


.•• 


141 


parte 




• . • 


11 



--:*/' 



CASES DECIDED IN THE SUPREME COURT, 



O^IPE OOXjOISTY. 



SUPREMK COU RT. 

(IN CHAMBEBS.) 



[BefoK Sir J. H. DB ViLLiEB8,K.C.Sf.G. (Chief 

Juslice.)] 



hlkhbkrg v. jacobson and cx>. (j-n^^^sj^ 

Attachment — Otit-taiidiiig debts — Unsatis- 
fied judgiueut. 



This matter was before the Court on Thurs- 
day last, and was ordered to stand over for the 
return of the Deputy Sheriff of Namaqualand. 
It appeared from the petition that on the 22nd 
NoTember last the petitioner obtained judgment 
■gainst laaac Jacobson and Josef Dembezer, 
trading at Springbok, Namaqualand, under the 
style or firm of Jaoobson & Co., for the sum of 
£1,069 15a. 2d., together with interest at 6 per 
cent from October 16, 1894. That on November 
^ last the petitioner caused a writ to be issued 
inexecutionof the judgment, and taxed costs 
^ Is. 2d. In execution of the writ, the Deputy 
Sheriff of Namaqualand attached all the loose 
assets of the firm, which were sold on the 21st 
December, there being still a deficit of about 
£470. The petitioner alleged that the firm of 
Jaoobson k Co. were still possessed of outstand- 
ing debts due to it by Tarious persons, and 
worth about £200. That the firm was also 
possessed of certain two erven. Nos. 82 and 83, 
situate in the village of Springbok, which are 
registered in the name of the partner Isaac 
Jaoobson. The prayer was for an order authori- 
sing the issue of a writ for the attachment and 
sale of the outstanding debts of the firm of 
Jaoobson k Co., and of the erven. 

Mr. Shell was heard in support of the appli- 
cation. 

The Court granted the order as prayed. 

[Applicant's Attorneys, Fairbridge Ardeme & 
Lavton.] 
B 



SaPREME COURT. 



[Before Sir J. H. DB Yillibbs, K.C.M.G. (Chief 
Justice), Mr. Justice Buchanan, and Mr. 
Justice Upington, K.C.M.G.] 



PROVISIONAL ROLL. 



VAN NOOEDBN V. MTBUBGH, 



/ 1896. 

• (Jan. 12th. 
Mr. Currey applied for provisional judgment 
on a promissory note for £82 10b. 
Granted. 



LEVIN V. WASSEBMAN. 

Mr. Rose-Innes, Q.C., with him Mr. Buchanan, 
applied for a decree of civil imprisonment on a 
judgment debt of £64 Is. lOd. for costs. Certified 
copies of the judgment and the writ, and the 
return of nvlla bona, were put in. 

Granted. 



VAN AABDT V. JEFFEB80N. 

Mr. Benjamin applied for provisional judg- 
ment on a mortgage bond of £300, and interest 
at 12 per cent, from 28th August, 1893, and 
asked that the property be declared executable. 

Granted. 



PETEB8EN V. FRAME AND WIFE. 

Mr. Tredgold applied for provisional judg- 
ment on an acknowledgment of debt for £100, 
and interest fromlst October, 1892, less £2o paid 
on account, and also for £11 13s. 4d. 

Granted. 



MAB8H V. MANNTX. 

Mr. Currey applied for provisional judgment 
on a mortgage bond for £58, with interest at 7 
per cent, from 22nd Januar}', 1894^ 

Granted. 



ZEEDEBBBBO AND 0THEB8 V. DK VILLIEBS. 

Mr. Qraham applied for the final adjudication 
of the defendant's estate. 
Decreed. 



BLACK V. LAGBANGE AND ANOTHEB. 

Mr. Tredgold applied for provisional judgment 
on a promissory note for £101 178. 6d., dated 
September 19, 1894. 

Granted. 



WIL0ON V. MILLBN. 

Mr. Graham applied for provisional judgment 
on a promissory note for £26 Is. lOd., with interest 
from Ist December, 1894. 

Granted. 



THE MASTEB V. BBINK'S BXECUTBIX. 

Mr. Giddy applied for an order against the 
defendant to file her account. 
Granted. 



PATBBSON V. BIOCABD. 

Mr. Buchanan applied for judgment for £14 
17b. 9d., goods sold and delivered. 
Granted. 



TOWN COUNCIL V. SHUTS. 

Mr. Buchanan applied for judgment 
£28 I7s. 6d.. an ear of rates. 
Granted. 



for 



BOHOLTZ v. DU PLESSIS. 

Mr. Graham applied for judgment for £2,500, 
balance of purchase money of a certain farm, 
with interest from let May, 1893, defendant 
being in default. 

Granted. 



WILSON, SON AND CO. V. KLEBCK. 

Mr. Graham applied for provisional judgment 
for the costs in this case, the principal sum 
having been paid. 

Granted. 



VISSBB V. DU PLESSIS. 

Mr. Maskew appMed for judgment for £90 6s. 
for goods sold and delivered, less £13 4b. 2d. 
contra account. 

Granted. 



MTBUBGH'S AS8IGNEES V. TAYLOR. 

Mr. Molteno applied for judgment 
£33 9s. 8d., goods sold and delivered. 
Granted. 



for 



REHABILITATIONS. 

On motion from the bar, the following re- 
habilitations were granted : Jan Petrus Bor- 
man, Bernhard Pilgram, Budolph Myburgli, 
and Jacobus Francois Kossouw. 



lie DANIEL JOHANNES GERHABDUS CILLIE. 

This application was ordered to stand over for 
a proper balance-sheet to be prepared. 



Re RAPHAEL ALEXANDEB. 

This application was ordered to stand over so 
as to give notice to the trustee. 



Re ABBAHAM STBPHANU8 \hH BTBAATBN. 

This application was ordered to stand over 
for production of proof of service of notice upon 
the trustee. 



GENERAL MOTIONS. 

IN THE MATTEB OF THE MINOR ABBAHAM 

KBUGEB. 

Mr. Tredgold applied for authority to the 
Master of the Supreme Court to pay out certain 
moneys to the credit of the minor in the Guar- 
dians' Fund to enable him to pay his share of 
the cost of subdivision of the farm Vaalrand, 
in the district of Albert, and to purchase stock 
to carry on farming operations. 

The Court granted an order as to £30 cost« 
for the partition of the farm ; but as to the 
balance it not appear that there was such press- 
ing necessity as to warrant the granting of the 
order. 



Re PBOVIDENT INSURANCE AND TRUST CO. 

Mr. Graham presented the report of the liqui- 
dator appointed for the voluntary liquidation 
of this company. 

The Court ordered the report to be filed. 



UNION GOLD-MINING COMPANY. 

Mr. Rose-Innes, Q.C., presented the report of 
the liquidators appointed for the voluntary 
liquidation of this company. 

The Court ordered the report to be filed. 



THE PETITION OF LEWIS LEVENSON. 

Mr. Jones asked the Court to make abpoIut« 
the rule nhi issued under the Titles 
Kegistration and Derelict Lands Act, 1881, for 
registration in the name of petitioner of certain 



laiidud bailaing^, eittiate at the comer of 
Bree tnd Church-Btreets, Cape Town, purchased 
from the insolvent estate of Alexander 
Miderose. 
The Court made the rule absolute. 



IS THK ISraOLY£XT B8TATE OF JOHN VI0KBR8. 

Mr. Molteno applied for a rule nUi 
reqmring the trustee of the said estate 
to Bhow cause why he should not be ' 
ordered to frame a contribution account against 
the cieditoTS of the estate for the purpose of 
tttlsfying certain judgment of the Periodical 

Com! at Lady Grey. 
The Conrt order* d the matter to stand over, 

10 that notice might be given to the trustee. 

THB MASTBB V. NICHOLSON'B TRUSTEK. 

Ur. Giddy applied for order requir- 
ing the respondents to file documents and 
aocomitsof liquidation and plans of distribution 
in respect of the said estates. 

The Conrt granted the order as prayed. 



THE MASIEB Y. PBINS' EXECUTORS. 

Mr. Giddy applied for leave to make 
abeolute the rule nUi requiring the re- 
apondento to show cause why orders 
chall not be granted for the attachment of 
their persons for contempt of Court, in failing 
to comply with orders directing them to file 
aeeounts of the administration of their trusts. 

The Conrt ordered that notice be given, return- 
able the first day of term. 



BOSS V. FARMER. 

Mr. Molteno asked the Court for rule nisi 
requiring the respondent to give applicant 
setmritj to abide the result of an action 
for the recovery of damages for defamation of 
character, and of a claim for wages, about to be 
institnted by applicant. 

The Court made the rule absolute ; the ques- 
tion of costs to stand over. 



SUPREME COURT. 



[Before Sir J. H. de Villiers, K.C.M.G. (Chief 
Justice), Mr. Justice Buchanan, and Mr. 
Justice Upington, K.C.M.G.] 



PROVISIONAL ROLL. 



lindenberq v. naude. 



f 1895. 
jjan. 14th. 

Provisional sentence — Mortgage bond — 

Interest. 



Mr. Rose-Innes, Q.C., moved for provisional 
sentence for the sum of £900, being the balance 
due on a mortgage bond for £1,600, with interest 
at 6 per oent. from December 1, 1892, less 
£6 16s. Id. paid on account, the bond being due 
by reason of non-payment of interest. 

Mr. Searle, Q.C., appeared for the defendant, 
and read his affidavit, in which he alleged iiUer 
alia that between the 1st December, 1892, and 
1st December, 1894, he had paid the plaintiff 
various sums of money amounting together to 
£106 on account of interest due on the bond ; 
that he had been summoned without having 
received any demand ; that on several occasions 
he asked the plaintiif to send him an account 
showing how they stood with regard to the 
interest on the bond, but that although he 
promised to do so, the plaintiif failed to keep 
his promise ; that as far as he was aware there 
was only a sum of £3 due as interest, which he 
was always ready and willing to pay on demand ; 
that he held receipts for most of the amounts 
paid. The defendant annexed three receipts 
showing payments amcun ting to £65, which he 
alleged had not been credited by the plaintiff. 

The last receipt was dated 20th October. 1894. 

The plaintiff in his replying affidavit alleged 
inter aliu that he kept an account current with 
the defendant, wherein capital and interest on 
the bond were brought up ; that on 31st 
December, 1892, a balance was struck showing 
£17 ds. lid. due to plaintiff for interest reckoned 
to the 1st December, 1892, which account and 
balance the defendant acknowledged in writing 
to be correct. 

That on 80th December, 1893, he furnished 
the defendant with a copy of their complete 
account current showing a balance of £984 3s. 1 Id. 
due to plaintiff, represented by £900 capital and 
£84 3s. lid. interest, calculated to the 1st 
December, 1893. 

That he arrived at the amount of interest due 
to date of issue of summons in the following 
manner: To the balance of £84 3b. lid. interest 



due to Ist December, 1893, he added twelve 
months' interest to l&t December, 1894, making 
a total of £156 ; deducting from this sum the 
£66 paid by defendant would leave £91 3b. lid. 
This last-named sum being equivalent to two 
years* iiiterest on the bond of £900 calculated 
at 6 per cent, per annum less, £16 16s. Id. He 
claimed interest from 1st December, 1892, as 
stated in the summons, but instead of a sum of 
£6 16s. Id., a sum of £16 16s. Id. should have 
been allowed as part payment. 

That on 27th October, 1888, defendant under- 
took in writing to pay intereut on the whole 
bond at 8 per cent; on the 28th May, 1889, 
plaintiff undertook to accept interest at 6 per 
cent on £600 and at 8 per cent on £400, and in 
May, 1898, the defendant again undertook to 
pay interest at 8 per cent on £900. 

Hence the reason for briog^g up interest in 
account current. That the various sums of 
money paid by defendant were payments made 
on account current to meet the increased rate of 
interest above that stated in the bond. 

Mr. if earle, Q.C. : Owing to the manner in 
which the plaintiff has dealt with the interest 
in the account current he cannot succeed in a 
claim for provisional sentence. There hafi 
practically been a novation. On the plaintiff's 
own showing the defendant has paid much more 
than he has been given credit for in the 
summons. 

Mr. Rose-Innes, Q.C., was not called on. 

The Court granted provisional sentence. 

The Chief Justice said : In terms of the bond 
the interest was payable in November. That 
interest has not been paid. If the defendant 
had produced any receipts for interest paid after 
November it might be held that there had l>een 
a waiver, but no such receipts have been 
produced. The Court can take no notice of the 
subsequent agreement as to payment of interest 
at 8 per cent. Provisional sentence will be 
granted for the capital sum and two j ears' 
interest at 6 per cent., per annum less £65 paid 
on account, with costs. 

[Plaintiff's Attorneys, Messrs. Van Zyl k, 
Buissinnc^; Defendant's Attorneys, Messrs. Sauer 
Sc Standen.] 

LONDON AND SOUTH AFRICAN BX- ( ,c„- 
PLOBATION C50. V. ORIQUALAND-J r ' Pi^u 
WEST DIAMOND- MINING 00. (J»u« '^^n. 

Mines and Minerals — Diamondiferous ground 
— Inspection — Prima facie evidence of the 
existence of diamonds. 

Where the aj)pltcanfH had leai<e(I certain ffroutul 
to the ro^poitdentSy and under the lease they 



icere entitled to a surrender on the discovery 
of diamondH in the ground leus<''d^ the Court 
on being aatinjied that there wom prinia-fkcie 
evidence of the ejcintence of diumandn in the 
Unul in question ordered an insj^ectioii af 
the ground for the purposes of a pending 
action. 



This was an application on notice to the 
respondent company that the latter would be 
required to show cause : 

(a) Why the plaintiffs shall not be allowed 
with their witnesses to go upon the land at 
present in the occupation of the defendants as 
depositing-fioors, ix>eise8sion whereof is claimed 
in this suit, for the purpose of locating the spots 
thereon in w^hioh diamonds have been found or 
which are known to be diamondiferoufi. 

(d) Why the plaintiffs shall not have the 
right by themselves or their agents and others, 
with or without the assistance of a supervisor 
to be appointed by this Honourable Court, to 
inspect and test the ground so in dispute, for 
the purpose of affording to the Court proof 
whether the same be diamondif erous. 

(r) Why the plaintiffs shall not have such 
further relief in the premises as in the cinrum- 
stances is meet ; and 

(jd) Why the costs of this application, and of 
the carrying out of any order granted by this 
Court in respect thereof, shall not be costs in 
the cause. 

It appeared from the affidavit of Mr. Jno. 
Blades Currey, manager of the applicant com- 
pany, that the company is the registered pro- 
prietor of the farm upon which are situated the 
floors of the late Orion Diamond-mining Com- 
pany (Limited), now held by the respondent 
company. 

In tenns of the lease under which the respon- 
dent company holds the land the applicant 
company is entitled to a surrender to them 
by the respondents of the land if proved to 
be diamondiferous. 

That certain information had been received 
by the applicant company to the effect that a 
diamond-mine exists upon the said floors. In 
consequence of such information the company 
had entered into an agreement with Messrs. 
Coghlan & Coghlan, of Kimberley, acting q^q,^ 
giving them the right to prospect upon the 
said floors, and to locate and acquire claims 
thereon not exceeding 200. 

That Coghlan & Coghlan had paid £500 for 
such rights, and had further agreed to pay £160 
per claim for all claims taken up, and also 
£1 10s. per month as rent for each claim. 



In support of ilie application, one Jenkin 
deposed that he resided on the Diamond-fields 
from 1S81 till June, 1894, during which time 
(except for a few montlis when he was out 
of employment) l&e '^nrork.ed as a miner in the 
IhTott*dPan and Bultfontein mine. That he 
worked for the respondent company for stveral 
retn, and after that company's property was 
taken over by the X>e Beers Mines he continued 
to work for the latter company until February 
ISM, when he was dismissed. 

During part of the time that he was working 
for the De Beers Mines he was employed in 
what is known as the Orion Company's floors, 
which belonged to the respondent company. 
That about the uiiddle of la»t year he heard 
reports that there was a mine on the Orion 
floors. That a man name(^ Osborne told him 
roughly whereabouts the mine was. He had 
been the claloi manager of the Orion Com- 
pany. 

That in September, 1893, deponent went to 

the spot on the Orion floors about which 

Osborne had told him and about 10<) yards 

from where deponent sank a hole about 12 

feet deep. He employed three natives to assist 

him. There was limestone on the surface of 

the ground. At a depth of between seven and 

eight feet he struck yellow ground. He worked 

about four feet into this. In the same month 

he took out a bucketful of yellow ground. 

He worked this ground. He found no diamonds 

in this ground but found carbon, garnets, and 

mica. The ground was what is known as 

yellow ground and gave every indication of 

being diamondiferous. It was very similar in 

appearance to the diamondiferous yellow ground 

in the Du Toit*s Pan mine. 

That he did nothing more after washing 
this ground until the month of February, 1894, 
when he again went to the same spot. He 
took out a bucketful of ground and washed 
it. In this ground be found three small 
diamonds, weighing in all about half a carat. 
These diamonds he handed to one Birkley, who 
was then living at Bultfontein with a view to 
getting the riglit to acquire claims from the 
Sxploration Co on the spot Birkley tried to 
get such rights but he was not successful. 

That the spot in question had been worked 
down to a depth uf about six feet before he 
touched it. There was a hole there which from 
its appearance had been dug some two or three 
years previously. 

That he had been informed that this hole 
had since been filled up. 

That he could point out and locate the spot 
on the floors where he foimd the diamonds. 
That the spot was about aOO yards N.N.E. from 



the Qriqualand West Co.'s washing machine 
and about the same distance south of Blancken- 
berg's Vlei 

That there is a road running from the North 
Circular Koad to the washing machine of the 
a.W.D. Mining Co., and from the N.N.E* 
along the Orion floors. About six yards to the 
right of the road proceeding from the washing 
machine is the spot where he found the 
diamonds. 

Other affidavits testifying to the diamondi- 
ferous nature of the soil in quection were filed. 

For the respondent company, Mr. Gardner 
Fred. Williams, general manager and director, 
deposed that on the 13th Octo}>er, 1894, in 
company with others h? visited the ppot nferred 
to in Jenkln's aflidavit. That the hole was 
being re-opened on their arrival at the spot, and 
after being completely cleared of all the soil 
that had been thrown into it, it was sunk down 
some inches into undisturl)ed ground. That he 
measured the hole at the time and found it to 
be eight feet. That he carefully examined the 
ground in the hole from the surface to the 
bottom, and he said positively that it did not 
contain diamondiferous ground, but showed on 
the surface lime and the rest being a bluish and 
rusty shale. That the undisturbed ground 
which was dug out was carefully examined and 
was not yellow or diamond-bearing ground. 
That adjacent to this bole there was then 
and is now lying the remains of blue ground 
previou^ly deposited there when work was being 
carried on. That in places this blue ground lies 
on the floor from two to three inches in depth. 

The deponent said that from his personal 
knowledge lime stone, basaltic rock and shale 
are found all over the country in the vicinity of 
the Diamond-fields and are not indications of 
the existence of diamondiferous soil. 

There were other affidavits to the same effect, 
and which alleged that the respondent company 
had no objection to an examination of.the holes 
already sunk, but that objection was raised to 
the applicant company prospecting the entire 
area of the floor. 

Mr. Searle, Q.C. (with him Mr. Currey), was 
heard in support of the application, and relied 
on London and Sovth African Exploration 
Company v. De Beers Mines (3 Sheil 300). 

Mr. Rose-Innes, Q.C, and Mr. Solomon, Q.C., 
for the respondent company. 

The Chief Justice said : I must repeat the 
observation that I have made frequently during 
the argument, and that is that the bona Jides 
of the applicants is an important ingredient in 
these cases, and as there has been a failure in a 
previous case to use the land surrendered as 
diamondiferous, the bona fides of the applicants 



6 



is very much diminiBhed« and if aay more of 
these appIicatioDB should be made, after it 
has been seen that in previous cases there had 
been no hona-Jide work done on the land, the 
Court would be inclined to doubt whetlicr there 
is, in these fresh applications, any intention to 
use the land as a diamond-mine. In the present 
case there is some prVnui'fdcie evidence that 
diamonds have been found on the spot men- 
tioned in the declaration, and the Court will 
make an order appointing Captain Quintrall, 
viewer, to inspect the holes mentioned in the 
affidavit of the applicants, for the purpose of 
ascertaining whether the soil is diamondif erous, 
and for that purpose to deepen aud widen the 
said holes ; and further, authorises him that in 
case diamondif erous soil should be found, to dig 
three more holes within the area coloui-ed red 
on the plan annexed to the declaration. Costs 
of the application to be costs in the case. 

Mr. Justice Buchanan : I concur in this order, 
but I must express my own individual opinion 
that the pri/fia-facie evidence that this ground 
is diamondif erous is in this case very meagre 
indeed ; in fact, but for the offer made by the 
respondents themselves to allow the ground to 
be examined, I should have had difficulty in 
consenting to the order. 

Sir Thomas Upington : I also agree that the 
question of bana Jides would affect my mind 
very much in these cases. 

Mr. Innes : I suppose that Captain Quintrall 
will use his discretion in widening or deepeninj; 
the holes ? 

The Chief Justice : It is left with Captain 
Quintrall. 

Mr. Searle : Each party, as in the previous 
case, can send one representative, 

The Chief Justice : Yes, the order can be 
amended accordingly, the Court appointing 
Captain Quintrall, " together with one person 
appointed by the applicants, and one by the 
respondents." 

[Applicants' Attorneys, Messrs. Fairbridge, 
Arderne & Lawton; Respondents' Attorneys, 
Messrs. Scanlen & Syfret.] 



PBEEBf ANTLE V. HRNNING. 



f 1896. 



Partnership 



(Jan. 1 4th. 
Application for Inferdict 
refused. 



This was an application for an interdict 
restraining the respondent from carrying on 
alone and without the assistance of applicant 
certain partnership business in the district of 
Albert, pending an impartial audit of the books, 
and an action for the recovery of damages for 
breach of contract. 



The facts are briefly these : 

The applicant and respondent enter* d into aa 
agreement to carr)' on for one year a country 
biisiuets on the farm Grootvlei belonging to 
respondent, who was also to furnish £100 
(half of the partnership capital) and suitable 
premises; Mrs. Freemantle to furnish the other 
■i^lOO and her husband (married out of oommu- 
uity) to act as her agent in the matter. Qoods 
to the value of £300 were purchased, the capital 
being increased ; and Henning gave a promis- 
sory note at four months for this amount. 
Freemantle was made manager at Grootvlei ; 
Henning taking charge of a branch businew 
started on joint account at Odendaalstroom 
with part of the Grootvlei stock. 

On the promissory not« falling due Henning 
had to pay £250 out of his private estate, Mrs. 
Freemantle not having contributed her share of 
the capital. Freemantle ordered goods con- 
trary to express instruction to the '^alue of 
£208 ; and Henning had to warn tht: firms supply- 
ing them not to execute order except on his own 
express author! t3% Freemantle moreover 
seriously injured the business at Grootvlei by 
absenting himself for several days at a time 
without leaving anyone in charge; and by 
habits of intoxication. 

Henning therefore proposed to Mrs. 
Freemantle a dissolution of the partnership 
subject to an audit of the book^ : the partner- 
ship having still six months to run. Freemantle 
immediately without notice to Henning closed 
up the business at Grootvlei and left; but 
Henning subsequently took charge of the Groot- 
vlei store also— having to pay £260 out of his 
private estate to meet claims made in connec- 
tion therewith. 

Mrs. Freemantle had. consented to an audit 
being made but disputed the auditor's accuracy 
on hi** report being presented, and applied for 
an interdict to prevent Henning carrung on 
the partnership business without the assistance 
of Freemantle. pending an impartial audit of 
the books and pending an action for damages. 

Mr. Graham for the applicant. 

Mr. Rose-Innes, Q.C.. for the respondent. 

The Court refused the application. 

The Chief Justice said : I am of opinion that 
this is not a case for the interference of the 
Court. Where a partner asks for relief from a 
co-partner, he must show that he himself has 
performed his share of the contract ; in other 
words, he must show that he comes into court 
with clean handn. Mrs. Freemantle, the 
partner, has entirely identified herself with the 
acts of her husband, and if those acts cannot be 
justified, I do not think she is entitled to 
succeed. It is quite true that it was part of the 



ori^nal contract that Mr. Freemantle should 
have equal control with the respondent of the 
busineas, but that would only he bo long as he 
conducted himself properly, and it is perfectly 
clear that Mr. Freemantle, in more ways than 
one, has misconducted himself. He ordered 
goodB to a large extent without the consent of 
Henning ; he left the business for several days, 
locked up the place, and according to the 
respondent went to Burghersdorp. According to 
his own statement he left Mrs. Koodt 
in charge, but there was no evidence to 
show that he was justified in putting 
Mrs. Roodt or anybody else in his place. 
Nor was there any necessity for him to go to 
Burghersdorp to consult his attorney as he 
might have written to his attorney. Then there 
is evidence of misconduct by drink, not in one 
isolated case, but for days together. The respon- 
dent was quite justified in saying he would have 
nothing to do with him, and refusing to allow 
him to conduct the business of the partnen-hip. 
Under these circumstances, the applicant is not 
entitled to an order. Of course, it is understood 
that if Mrs. Freemantle wishes to take her 
share in the partnership, and conduct it, she is 
entitled to do so, but she is not entitled to insist 
on her husband taking part in the management. 
For these reasons, the application must be re- 
fused with, costs. 

[Applicant's Attorney, G. Montgomery- 
Walker . Respondent's Attorneys, Messrs. Fair- 
bridge. Arderne & Lawton.] 



REOINA V. WE8SELS. 



/ 1895. 
(Jan. Nth. 

Liquor Licence — Act 2i of 1883, st-ctioii 75 — 

Cuntraventioii — Sale without licence. 



This was an appeal from a sentence passed 
upon the appellant by the Resident Magistrate 
of CaledoD. 

The accused, Margaretha Wilhelmina Johanna 
Wessels and Hendrik van Dyk, were charged 
with having on the 22nd November, 1894, and at 
Gansgat, wrongfully and unlawfully contravened 
section 76, Act 'i8 of 1888. by selling or exposing 
for sale a quantity of Intoxicating liquor — 
namely, three bottles of brandy - for the sum of 
Bs. 9d., to one Charles Van. without having 
obtained a licence to do so. 

The accused pleaded not guilty. 

It appeared from the evidence for the prosecu- 
tion that Van Dyk had 7s. 6d. money belonging 
to Van; that the latt-er asked Van Dyk if he 
could have chree bottles of brandy, and that 
Van Dyk referred hfm to his housekeeper, the 



female prisoner, who sold him three bottles of 
brandy for 3s. 9d., and paid him the balance of 
t*e 7s. 6d. in cash. 

The female prisoner admitted thai she delivered 
two bottles of brandy to a messenger sent by 
Van, but alleged that she bad done so in con- 
sequence of Van's representation that he had 
been told by Van Dyk that he could have the 
brandy. 

The male prisoner was acquitted, but Wessels 
was found guilty and sentenced to pay a fine of 
£10, or in default to undergo five weeks' im- 
prisonment with hard labour. 

From this sentence the present appeal was 
brought. 

Mr. Graham was heard in support of the 
appeal. 

Mr. Giddy, for the Crown, was not called 
upon. 

The appeal was dismissed. 

The Chief Justice said : On the evidence the 
Magistrate would have been quite justified in 
convict ng the male prisoner, but ihat would 
have been no reason for acquitting the female 
prisoner, the appellant. Her story seems a most 
unlikely one. She says the man came to her 
and gave her 7s. 6d., out of which she kept 
3s. 9ii.. he saying that that amount could wait a 
little longer. Now, it so happens that 3s. 9d. 
corresponds to the price of three bottles of 
brandy. In my opinion she lold the brandy, 
and there is ro evidence to show that she acted 
under compulsion in any way. Her proper 
course would have been to lefuse to give the 
brandy, but she chose to sell it, and was re- 
sponsible for the act. The appeal must be 
dismissed. 

[Appellants' Attorney, Paul de Villiers.] 

£x jffirfe A LING. 

This was a petition for nn order authorising 
the registration of a certain antc-nuptial con- 
tract dated 11th April, 187 -<, whicli the appli- 
cant's clerk had neglected to register. 

Mr. Graham was heard for the applicant. 

The order was granted fuigect to the usual 
order that the applicant paid costs, without 
prejudice to the rights of creditors l>etwpcn the 
date of the mariiage and the date of the regis- 
tration. 



Ew pai'te LAV/s. 

Mr. Shell moved for an or Jer authorising the 
registration of an ante-nuptial contract not 
tendered for registration within the prescribed 
time. 

Order grantee. The applicant to pay costs of 
application. Usual order ns to rights of 
creditors, 



8 



Eio parte jakbenyille munici- f 1895. 

PALITY. (Jan. 14th. 

Derelict Lands Act — Erven — Uegistratiou — 

Notice. 



Petition of the Members of the Jansenville 
Municipality, which was constituted in 1880. 

On 2 1st January, 1854 (transfer No. 196) 
Petrufl Jacobus Fourie became possessed of a 
certain piece of land called " Vergenoegd," 
situat-ed in the division of Jansenville, in 
extent 3,000 morgen. 

The estate of Fourie, who died in August, 
1864, was surrendered as insolvent on 21st 
November, 1867. 

On 10th February, 185 1, Fourie sold 71 erv^n 
in Jansenville. The erven so sold have all been 
tranferred to different purchasers at different 
times. Thereafter erven or lots 71 to 84 were 
also sold and transferred. 

The erven one to eighty-four sold and trans- 
ferred as aforesaid have all been deducted from 
the original diagram of the farm " Vergenoegd," 
leaving as the remaining extent 625 morgen. 

On 17th March, 1869 (transfer No. 167), Henr}* 
Nuttall Chase, in his capacity as sole trustee of 
the insolvent estate of Fourie, transferred to 
P. I. Fourie, jun., and four others, certain per- 
petual quitrent place called '* Vergenoegd " 
situated in the division of Uitenhage, measur- 
ing as per remaining extent 1,985 morgen H97 
square roods. 

The executors of Fourie (deceased) when 
surrendering the estate brought up in Schedule 
" B," I)eing list of immovable property, the 
following : *' Certain piece of perpetual quitrent 
land called * Vergenoegd* and also piece of 
quitrent place called * Nieuwfontein,' measur- 
ing together 5,000 morgen, sundry erven in the 
village of Jansenville unsold, eleven erven in 
all." 

According to certain conditions of sale filed 
with the papers of the insolvent estate of P. I. 
Fourie, sen., the sole trustee sold on 18th April, 
1868, to P. I. Fourie, jun., and four others the 
insolvent's share in the farms '* Vergenoegd " and 
" Nieuw fontein " measuring together 5, 1 1 6 morgen 
and 592 square roods subject to the conditions 
under which the Jansenville erven were sold. 

The trustee in his report stat-es : ** The assets in 
this estate, exclusive of the cash received from 
the executors dative £46 I8s. 6d., consists entirely 
of landed property as undermentioned : 

" Ist. The remaining portions of the 
farm ** Vergenoegd," from which the adjoining 
village of Jansenville has been deducted, and 
the adjoining farm " Nieuwfontein " measuring 
together about 5,000 morgen. 



"2nd. Eleven erven in the village of 
Jansenville and one in the village of Waterford. 

"According to the 9th clause of the condi- 
tions of sale, upon which the erven in 
Jansenville were sold, the plots marked Dutch 
Reformed Church Parsonage and Episcopal 
Church and Parsonage were reserved for the 
erection of the said churches in the village, and 
the trustee will with the consent of the creditors 
now convey the said erven to their respective 
consistories." 

On the original diagram in the Surveyor- 
Generars Office it appears that 1,014 morgen 
203 square rood 4 have been deducted, leaving 
a remainder of 1,986 morgen 397 square roods, 
which is the extent transferred to P. I. Fourie, 
jun., and four others on 17th March, 1869. 

The petitioners alleged that it was the inten- 
tion of Fourie, sen., to cut off a part measuring 
1,014 morgen 203 square roods from the farm 
" Vergenoegd " for the purpose of dividing same 
into village lots, that such deduction had not 
been made in the Deeds Office, neither had the 
1,014 morgen 196 square roods ever been trans- 
ferred to a municipality or other public body ; 
on the contrary, the er>'en or lots of ground 
sold have been deducted and transferred from 
the diagram of the whole farm " Verg«?noegd " 

The petitioners further alleged that the 
extent 1,014 morgen 196 square roods had for 
more than thirty years been used and occupied 
as their own nee r/, nee clam, nee precario, by 
the inhabitants of the village of Jansenville. 

The prayer was for an order authorising the 
Registrar of Deeds to register the 1.014 morgen 
195 square roods of the farm "Vergenoegd," 
or such portions thereof as may be found not 
to have been transferred from the name of P. 
I. Fourie, sen., in the name of the Commis- 
sioners for the time being of the Municipality 
of Jansenville. 

Mr. Buchanan was heard in support of the 
application. 

The Court granted a rile nisi returnable on 
the* 14th February. 

The Chief Justice said : I am afraid that 
relief cannot be granted without some further 
expense in this matter. The strictly proper 
course would be to appoint another trustee, but 
if notice is given to the creditors of Petrus 
Jacobus Fourie, 1 think that will be sufficient. 
In addition to that notice must be given to 
Fourie, jun., and the four others, and ample time 
must be given calling upon all persons having a 
claim of any kind to the land mentioned in the 

•On t he return day the rule was made absolnto. 
The fiosts to he defrayed by the applicanL«t. 

Rkp. 



petition to appear in the Supreme Court on the* 
I4th February to establish their claims or be 
thereafter debarred. The notice to be published 
once in the " Government Gazette " and once 
eaoh in English and Dutch in the ** Uitenhage 
Times.*' The notice to be served also on all 
thoee who have proved debts of upwards of £10 
on the estate of Petrus Jacobus Faure. 

[Applicants' Attorneys, Messrs. Reitz and 
HeroldJ 



SUPREME COURT. 

(IN CHAMBERS.) 



[Before Sir J. H. dk Villibrs, K.C.M.G. (Chief 
Justice), Mr. Justice Buchanan, and Mr. 
Justice Upinqton, K.C.M.G.] 



BEOINA V. KLAAS. 



f 1895. 
(Jan. l»th. 



Mr. Justice Upington referred to this case, 
and said that as judge of the week it had come 
before him. The accused, a lad of seventeen, 
was convicted before the Resident Magistrate of 
Cape Town on two charges of theft of grapes, 
and was sentenced to receive fifteen lashes and 
to be indentured to some fit and proper person 
until his twenty-first year. The Magistrate had 
written to the revining judge that he had erred 
in passing the latter part of the sentence, as the 
prisoner was over sixteen years of age. The 
first part of the sentence was confirmed, there 
lieing a previous conviction against the prisoner, 
but the latter part was struck out. 



lie NORTH-EASTERN BULTFONTEIN f 1895. 
(LIMITBD), IN LIQUIDATION. (Jan. 19th 

Company in liqaidation — Sile of assets — 

Coofirmation. 

WKert (he UMnelit of a company in Vquidation 
liftd been mid in lots^ awl the debenture- 
holders had had ample notice of the sale 
but had made no arranf/emenlH to purrhafte 
the onset 9, and the, stale had been confirmed 
bt/ the High Court of Gr!(jtialand^ the 
Supreme Court refused on the application of 

*On the rotorn day the rolo wuh made absoluto. 
The oofftH to be defrayed by the applioants. 

Hep. 

C 



the debenture-holders to interfere loith the 
discretion exercised by the High Courts or to 
restrain delivery of the assets to the 
purchasers. 



This matter came before the Court on the 
petitions and affidavits of Messrs. J. B. Currey 
and A. Mosely. 

It appeared from Mr. Carrey's petition that 
the liquidator of the company recently sold by 
auction, subject to confirmation of the High 
Court of Griqualand, for about £86,000, the 
remaining portion of the company's assets for 
which he could obtain bids, leaving assets 
unrealised worth about £400. 

On the 16th inst. the liquidator applied to the 
High Court for confirmation of the sale, and it 
was confirmed. At the hearing of the applica- 
tion it was opposed by the debenture-holders 
and by Messrs. Reiners, Yon Laer k. Co., credi- 
tors, for upwards of £4,000. Various other 
creditors supported the application, as did also 
the purchasers. The petitioner alleged that the 
sale, if finally confirmed, would cause irrepar- 
able loss and damage to the debenture-holders, 
and that they were desirous of appealing from 
the order of the High Court. That this inten- 
tion to appeal was mentioned in the High 
Court, but that the Court refused to stay pro- 
ceedings or give leave to appeal, holding that 
there was no appeal. 

Mr. Currey went on to state that since the 
2nd inst. he had been in continuous cable com- 
munication with his principals (the trustees for 
the debenture-holders), and knew that every 
effort was being made in London to form a 
company to take over the assets of the North- 
eastern Bultfontein at a higher price than that 
realised at the recent sale, and that he fully 
believed that such a company would be formed 
if reasonable time were granted for the purpose. 

That in the event of the recent sale being 
confirmed, any loss resulting from delay, or even 
from a resale producing a smaller amount than 
that above referred to, would fall upon the 
secured creditors, all of whom he (Mr. Currey) 
represented, and he was prepared on their behalf 
to accept the responsibility of that risk. 

The prayer was that any proceeding under 
the order of the High Court confirming the 
sale might be stayed pending an appeal, that 
leave might be granted to appeal for the order 
of the High Court or for alternative relief. 

Mr Alfred Mosely, a share and debenture 
holder of the company, alleged inter alia that 
he had taken a very prominent part in the re- 
construction scheme which the Court recently 
decided there wiis no jurisdiction to accept. 



10 



That after this decifiion he came out to South 
Africa and was actively engaged in a further 
scheme for the reconstruction of the company 
until a very few hours before the sale of the 
assets commenced, and that his efforts came to 
nothing in consequence of the action of a small 
number of dissenting creditors. 

That the entirety of the property mortgaged 
was never put up for sale as a whole, and the 
debenture trustees had never yet had an oppor- 
tunity of expressing their willingness or other- 
wise to take over the assets at the total of the 
prices realised by the various portions, and the 
right to so take over the assets they were desirous 
of having for a reasonable time. 

He corroborated the statements made by 
Mr. Currey, and pointed out that the claim 
property of the company alone was assessed by 
the Mining Board at the sum of £160,000. 

The matter first came before Mr. Justice 
Upington in Chambers, but no order was made. 
After the failure of the latter application, notice 
of appeal from the original order of the High 
Court was given. 

Mr. Searle, Q C. (with him Mr. Molteno), now 
appeared in support of the application. 

The Court made no order. 

The Chief Justice said : In my opinion there 
is not sufficient evidence before the Court to 
justify us in restraining the delivery of the 
assets purchased at the recent sale. The main 
objection raised to the sale now is that the assets 
were sold in lot«, and that they were not put up 
en hloo. But no request or suggestion was made 
to the liquidator that the assets after being sold 
in lots should be put up together. For months 
and months it was known when the sale would 
take place, so that the debenture-holders had 
ample time to make arrangements to buy the 
assets if they intended to do so. In August last 
the High Court refused to sanction the scheme 
of reconstruction, and in the following Novem- 
ber the Supreme Court on appeal upheld the 
decision of the High Court, in the interval the 
debenture-holdera have had sufficient time to 
make arrangements to purchase the assets. Mr. 
Mosely came from England to endeavour to 
carry out a further scheme of reconstruction, 
and as an explanation as to why the debenture- 
holders did not buy in the assets, he says 
that it was never contemplated that the 
scheme of reconstruction would not go through, 
but this is a contingency which should have 
been provided for. We must treat this applica- 
tion as though the matter came on appeal from 
the High Court, and there is nothing before us 
to justify our interfering with the discretion 
e^^ercised b^ that Court ; consequently, it would 



only be raising false hopes bv restraining 
delivery of the assets reoently eold. There will 
be no order on the application. 

Their lordships concurred, 

[Applicants' Attorneys, Messrs. Fairbridge, 
Arderne & Lawton.] 



SUPREME COURT. 

(IN CHAMBERS.) 

[Before Sir J. H. de Yillikbs, K.C.M.O. (Chief 
Justice), and Mr. Justice Upington, 
K.C.M.G.] 



ADMISSION. 



Ex parte stonky. 



\ 1896. 
/ Jan. 22nd. 

Mr. Searle, Q.C., moved for the admission of 
Mr. William Stoney, barrister at law, af. an 
advocate. 

Mr. Stoney took the oath of allegiance, and 
was duly admitted, subject to the filing of the 
certificate of admission on its arrival from 
England. 



r 1895. 
{ Jan. 2^d. 



QENERAL MOTIONS. 

Eoi parte MANAGERS FREBE 
HOSPITAL, EAST LONDON. 

This was the petition of the Board of 
Managers of the Frere Hospital, East London, 
incorporated under the Act 6 of 1892, who as 
such stand and are possessed of the lands set 
forth in the schedule A to the Act. In terms 
of section 18 of the Act the petitioners gave 
notice to the holders of the land set forth in the 
schedule annexed to the petition that it was 
their intention to resume possession of the land 
and cancel the titles in consequence of the non- 
payment of quitrent, which is more than two 
years in arrear. The land is not mortgaged. 
The prayer was for an order authorising : 

(a) The cancellation of all title deeds and 
sub-divisional diagrams issued in respect of the 
land in question. 

(Jf) The resumption of possession and owner- 
ship of the land by the petitioners, with power 
to sell the same for the purposes mentioned in 
the original grants. 

Mr. Jones for the petitioners. 

As no notice of the present application ap- 
peared to hiive been given, the Court granted a 



ablet 

b« effected, failing which, on« publication in 

the "Cape MercuTy," 

[PetitioDcra' Attomeri, Hcrus. Kindlay Sc 
T«lt.] 



Er parte fosrkbivb.— % THE hinobs btabck. 

This w»« va ftpplication by the tutor and br 
the mother of the mlaorB tor leave to raise by 
wa; of Taiiig^K" fiB sum ot £2*^6 to execute 
neonsBry repaini on certain houBee vhich are to 
devolve upon the minora after the death of their 
mother. The Master reported in favour of the 
petition. 

Hr. Shell for the applicants. 

The Court granted the order as prayed. 



Petition of CharleE Wm. Eagle. On 12th 
Hay, 1893. the petitiooer purchased certain pro- 
perty in the village of Aberdeen for the beoe&t 
of and in trust for bis minor bod, aged ten years, 
for the sum of £1,175. In terms of the sale 
£476 had. to be paid in cash, which has been 
paid, aod tbe balance of the purchase price was 
to remain on mortgage at G per cent, from 1st 
July, 1893, interest to be payable half-yearly, the 
capital to be paid as followB : *200 oo Ist July. 
1899, and thereafter by annual iaetalments of 
£100 each, payable on lat July in each year. The 
prayer was for an order authorising the peti- 
tioner to pass tbe bond. 

Hr. Holteno for tbe pelitiocer. 

The Court granted tbe order in terms of the 
Master's report that the petitioner bindB himself 
as surety and co-priucipal debtor for the pay- 
ment of the Interest on the bond and of the 
iDBtalmentu of the purchase price as they 
become due. 



Ex parte TaKVmK Oituirf \ 1S96. 

SCBOOL. WTHBno. ( Jan. 22nd. 

PetitioD of the (rusteee for the time being of 
the Infant-tohool, Wynberg. It appeared from 
the petition that on 9tb September, 1837. and 
17lh July, 183S, certain land situated on the 
Alphen Hill, Wynberg, was granted in freehold 
to tite Bev. Thomas Blair and others as trustees 
ftv an infant-school, with power to sell portions 
of the said land and devote the proceeds thereof 

' On the retmu day the rule waamadeabwinte. 



neartheWyoberg Railway-station, OD the Ottary- 
road, for the purpose of a Cburcb of England 
Mission -school. That owing to the growth of 
thevillage of Wynbeig in the direction oftht 
rail way -station, the attendance at the Infant' 
school gradually decreased, and as a result, th4 
Hission-ecbool by degrees absorbed it. That in 
consequence of this, the trustees for the time 
being determined to convert the Infant-school 
buildings into two cottages for tbe purpose of 
letting them. This was done, and tlie balance 
of rental, after deducting rates, was annually 
handed over to the rector for tbe purposes of 
the UissloQ-BChool. That in 188e the trustees, 
flnding it impossible to keep the ooltages in 
repair, obtained the sanction of tbe Qorernment 
to sell the same, with the result that a sum of 
£460 was left in the hands of the trustees after 
paying off certain liabilities. That the interest 
on the said £4S0 bas until lately been handed 
to the rector of S. John's, Wynberg, tor tbe pur- 
poses of the Mission -Bchool, the sum now in 
the hands of tbe trustees being £626, which has 
been placed in the Oovemment Havings Bank 
at 31, now 3^, intereet That theHission-school 
ie at present in a very neglected and dilapidated 
condition, and that it is of tbe utmost import- 
anoe that immediate funds be obtained to 
reoonstnict tbe same, so as to entitle the school 
to reoeive educational grant. That the peti- 
tioners were informed by the trustees of the 
Dlooeae of Cape Town, in whom the school is at 
present vested, that they are unable to raise 
any nioney on mortgage of the school. That 
in consequence of this the scheme of recon- 
struction is at present at a standstill, and 
althoogh a sum of £646 has been already 
collected or promised towards the necessary 
expenditure, it is calculated that a sum of 
£1,100 will have to be spent to pat tbe buildings 
in proper repair and maintain the grant from 
the Educational Department. 

The petitioners alleged that they were 
anxious to help the Mission-school, and that as 
their trust in the Miesion-achool had virtually 
ceased, tbey were willing, with the sanction of 
the Court, to transfer the sum of £625 now ig 
their hands to the Uaoaging Committee of the 
Uisaion-Bchoot, to be devoted by the 
oommittee to the reconstmctioD of tbe 
Uisslon-Bchool, which has virtually taken 
the place of the Infant-school. That 
the petitioners had erery reason to believe 
that the Hanaging Committee are prepared to 



12 



1 



iMBcepi the transfer of the said amount and to 
enter upon the work of reconstruction at once 
That the petitioners had approached Govern- 
ment upon the subject of the transfer and that 
whilst the Government offered no objection to 
the proposal, they advised the petitioners to 
apply to the Court. (Letter from Undersecretary 
for Agriculture annexed.) The prayer was for 
an order authorising the petitioners to transfer 
the sum of £525, or such other sum as may be in 
their hands, belonging to the trust account of 
the Infant-school at Wynberg to that of the 
Managing Committee in trust for the time being 
of the Church of England Mission-school, 
Ottery-road, Wynberg, to be devoted by them to 
the reconstruction and improvement of the 
Mission-school buildings according to the pre- 
pared plans and specifications. 

One of the trustees of the Mission -school tiled 
an affidavit in which he expressed his willing- 
ness to accept the funds for the purposes detailed 
in the petition. 

Mr. Searle, Q.C., was heard in support of the 
application. 

The Chief Justice said : My only difficulty in 
granting the order is that the Infant-school is 
wholly undenominational, and the Mission-school 
is not wholly so ; although, however, children of 
all denominations attend it, still it is a denomi- 
national mission-school. Under these circum- 
stances I think it well that an opportunity 
should be given to anyone of the public interested 
in it to oppose this application. Under these 
circumstances, it is better to give a rule nisi* 
calling on all persons interested to show cause 
why the relief asked for should not be granted ; 
the rule to be advertised once in the " Cape 
Times " and once in the " Cape Argus,'' the 
costs to come out ot the funds in the hands of 
the trustees. 

[Petitioners' Attorney, D. Tennant, jun.] 

* On tho return day the rule was made abnolate. 

Rep. 



SUPREME COURT. 

(IN CHAMBERS.) 



[Before Sir J. H. DB Yillibbs, K.C.M.G. (Chief 
Justice), and Mr. Justice Upington, 
K.C.M.G.] 



Ite A, DICKSON AND CO., LIMITED. | Jan^^24th 

This was an application for an order placing 
the said company under the operation of the 
winding-up clauses of the Companies Act, 1892, 
by reason of its inability to satisfy its debts. 

Mr. Searle, Q.C., for the applicants (the 
African Banking Corporation), said they had 
received information by cable that negotiations 
were pending in England with a view to obviat- 
ing liquidation, and they had expected to hear 
the result that morning, but no cable had 
arrived. He asked that the matter should be 
postponed until the next sitting of the Court, as 
there might then be no necessity for the appli- 
cation. 

Mr. Innes, Q.C., for the respondents, said he 
had no objection to a postpoaement, because his 
clients were desirous to avtid liquidation. 

The matter was postponed until the first day 
of next term. 



Re ANTB-NUPTIAL CONTRACT HOUQH f 1 896. 

AND DU PLESsis. iJan. 24th. 

This was an application for the confirmation 
and registration of an ante-nuptial contract 
executed on 8th December, 1894, between 
Johannes Hendrik Hough and Christina Wil- 
helmina du Plessis, but not tendered for registra- 
tion within the period prescribed by law. The 
facts are these : At the execution of the con- 
tract, Christina Wilhelmina du Plessis, who is a 
minor, was assisted by her brother-in-law, one 
Vermeulen, with whom she had lived for years, 
and who was generally considered to be her 
guardian. After the marriage, the notary 
before whom the contract was executed dis- 
covered that one Du Plessis, and not Vermeulen, 
was the guardian, and he now alleged that the 
delay in tendering the contract for registration 
was occasioned in obtaining the guardian's oon 
sent to the marriage, and his ratification of the 
contract. An affidavit was filed by the guar- 
dian, consenting to the marriage, and confirm- 
ing the contract 

Mr. Shell was heard in support of the applica- 
tion. 

The Court ordered the contract to be regis- 
tered, the affidavit of Du Plessis, the guardian, 
to be filed with the order. 



13 



B08B V. PAKBIKB. 



f 1896. 
1 Jan. 24th. 



Attachment — Qoods — Security for costs. 



Mr. MoU«iio applied for an order for the 
attichmeiit of the person or the goods of the 
Tspondent, A. W. Farmer, who until recently 
bad carried on busmeBS in Ghurch-etreet, Cape 
Town, sellinK American editions of English and 
other anthora. The affidavits set forth that a 
rale Mi had been obtained requiring the re- 
spondent to give aecurity for costs in an action 
pending against the respondent, in which £20 
WIS daimed as damag^es for slander, and £16 as 
damages in lieu of notice. The order had been 
made absolute, and had been served upon 
the respondent, who replied that he had no 
effects. The affidavits further stated that the 
respondent had done a lucrative trade in Cape 
Town, and had taken considerable sums of 
money over the counter, that he had seventy-one 
cases of books, valued at £1,500, on board the 
S.8. BiHel Tower, now at East London, and a 
▼aluable consignment of watches by the R.M.S. 
Moor. The application was that goods to the 
Talue of £100 should be attached as security for 



Mr. Justice Upington : You hsve lately sued 
Farmer in the Magistrate's Court, and to the 
eummons an exception was taken which was 
upheld? 

Mr. Molteno : An appeal has been noted from 
the Magistrate's decision. The exception was 
that as there were two actions, one for £16 wages 
and the other for £20 damages for slander, the 
actioDfl had been split. There was abundant 
anthority to show that the exception was bad 
and they had appealed from the judgment. It 
was for the benefit of Farmer that the two 
actions were taken in the Magistrate's Court, 
80 that he should not be detained in Cape Town. 
It was clear that he had got ample property. 

The Chief Justice : Whose books are they ? 

Mr. Molteno : The defendant's. 

The Chief Justice : Is he not an agent 7 

Mr. Molteno: No, he was doing business on 
hifl own account. The affidavit states that the 
watches are his also. 

Mr. Justice Upington said that if he knew 
that the plaintiff was going to sue in the Magis- 
trate's Court for £20 damages for slander and 
£16 in lieu of notice he should have hesitated 
in making the order for security for costs. 

The Chief Justice : If there had not been a 
mle we would hesitate to make an order. It 
seems a very paltry thing to attach a man's 
personal belongings in this manner. But the 



rule has been granted and It must be obeyed in 
some form or other. I should think that two 
cases of books would be enough. 

Mr. Molteno suggested an older for the attach- 
ment of goods to the value of £100. 

Mr. Justice Upington expressed hifl regret at 
having granted the rule nm under the circum- 
stances now disclosed. 

Mr. Molteno said the rule had been subse- 
quently made absolute by the full Court. 

An order was granted attaching goods, the 
property of the defendant on board the Eiffel 
Tower or elsewhere, to the value of £60 as 
security for the applicant's costs. 

[Applicant's Attorneys, Messrs. Fairbridge, 
Arderne St Lawton.] 

BBQINAV. BYM. {Febf^igt. 

Theft - Remittal— Review. 
}Vhere a primoner, charged ati two counts (1) 
with amfranemng Act 35 of 1893, section 25 y 
and (2) with theft, pleaded guilty , and the 
case was remitted by the Attorney-Genei-al 
for trial on the charge of theft only, and the 
Magistrate tried the pi'isoner ofi both counts, 
found him guilty, and sentenced him to a 
term of imprisonment on each charge, the 
Court on review quashed the conviction on 
the first charge. 

This case came before the Chief Justice, as 
judge of the week, on review from the R.M. 
of Sutherland. 

The prisoner was charged (1) with contra- 
vening Act 35 of 1893, section 25, in thathe entered 
an enclosure with intent to steal an ostrich, 
and (2y with stealing the ostrich. 

The prisoner pleaded guilty. The Attomey- 
Qeneral remitted the case for trial on the 
charge of theft only. The Magistrate however 
tried the prisoner on both counts, found him 
guilty, and sentenced him to six months' im- 
prisonment with hard labour on the first count 
and twelve months' imprisonment with hard 
labour on the second count. 

Mr. Giddy for the Crown : The Attorney- 
General is not prepared to support the convic- 
tion on the first count. 

The Chief Justice said : It is quite clear that 
the conviction on the first count cannot be 
sustained. Even if the remittal had been on 
both charges, the charge of theft, in my 
opinion, includes that of entering into the 
enclosed premises for the purpose of commit- 
ting the theft. The conviction on the first 
count must be quashed. 



14 



Mr. JuBtice Buchanan oonourred 

Mr. Justice Upington: I also concur. The 
Attorney-General having remitted only the 
charge of theft appears to have thought that 
the Magistrate would have understood that 
such charge was alone to have been dealt with. 



PROVISIONAL ROLL. 



VAN BR0EMT8BN Y. OBCHABD. 



f 1895. 
(Feb. Ist. 

Mr. Buchanan applied for the final adjudica- 
tion of defendant *s estate. 
Granted. 



VAN BYN COMPANY V. BOTES. 

Mr. Molteno moved for provisional judgment 
for the sum of £27 158. 6d., with interest at 8 per 
oentw 

The Court granted provisional judgment with 
interest at 6 per cent., the legal rate. 



THWAIT8 V. BRAND. 

Mr. Graham moved for provisional sentence 
for the sum of £490, less £256 38. 8d. paid on 
account. 

Granted. 



STOCKDALE V. VAN ZTL AND ANOTHBB. 

Mr. Maskew moved for provisional judgment 
for the sum of £360. 
Granted. 



TBUTEB V. TBUTEB. 

Mr. Shell moved for judgment for the sum of 
£163 10b., less £86 10b., and also prayed that 
certain funds in the Kimberley branch of the 
Standard Bank standing to the credit of the 
defendant be made executable. 

Order granted. 



LOUW V. KUPKB. 

Mr. Shippard moved for judgment for the 
sum of £195 66. 7d., with interest. 
Granted. 



BEABLB AND SONS V H0B8FALL. 

Mr. Castens moved for judgment for the sum 
of £44 78. 3d., less £10 48. paid on account. 
Granted. 



BEHABILITATI0N8. 

Mr. Benjamin moved for the rehabilitation of 
Frederick Hendrik van Thiel Berghuis. 
Granted. 



Mr. Maskew moved for the rehabilitation of 
Isaac Horak de Villiers. 

Granted. 

Mr. Tredgold moved for the rehabilitation of 
John Nicholas Botha. 

Granted. 

Mr. Maskew moved for the rehabilitation of 
Frederick Louis van Eyssen. 

Granted. 

Mr. Buchanan moved for the rehabilitation of 
Abraham Stephanus van Straaten. 

Granted. 



FURNIVALL V. CORNWELL'S EXECU 

TOBS. 



f 1896. 
XFeb. let. 
I ,. 4th. 



Utufmct— Mutual will — Security — Minors 
— Administrators — Re-marriage of surviv- 
ing spouse. 

HimlKind and trife^ warned in community, by 
mutual irill reciprocally bequeathed to the 
survicor the life usufruct of their joint ejttate, 
and appointed the children of the marriaffe 
a» heirs of such estate subject to the usufrtict. 

The testator apjyointed the respondents an 
executors of his icill^ administrators of hi% 
estate and^ in die event of the wife^s mnrry- 
ing again ^ gwirdians of his minor heirs. 

The testator died first and some years after- 
wards the surrivor^ the applicant, married 
again^ whereujMm the respondents cUiitn^d 
the sole control and admin'stratioti of the 
joint estate. 

Held that, although th9 applicant might be 
liable to give security against misapproprla 
tion or iraste, she fas entitled, as usufructuary^ 
to the control and administration of the 
joint estate. 



This was an application on notice to the 
respondents (William Bradford Com well and 
Geoige William Steytler, in their capacity as 
the testamentary and assumed executors respec- 
tively of the late George Thomas Comwell, the 
applicant's first husband) that they would be 
required to show cause why it should not 
}>e declared that the applicant is entitled 
to have and take into her possession, 
custody, and control the property and estate 
disposed of by the mutual last will of herself 
and her said late husband George Thomas 
Comwell, and to have the entire usufruct and 
enjoyment thereof in terms of the said will 
dated 6th April, 1880, and why they should not 



15 



be rettrtiiied from interf erlTiic with her in that 

behalf and also why they should not be ordered 

topty the ooBtB of this application. 

Tbe will bequeathed to the BurviTor the entire 

onfTuct and enjoyment of the estate of what 

tttnie Boever, both movable and immovable, 

whidi might be left at the death of the firet 

(^ng for and during the lifetime of such 

funriTOT, after whose death the estate was to 

detoend aa in the will provided. 

The teatatoiB then appointed their children, 

the lawful isaue of their marriage, already bom 

« still to be begotten, their heirs of all their 

Vropertj. eataie, and effects of what nature 

soever, witbont any exception, subject howeyer 

to the UMifmct af oreeaid. 

The teatator appointed his father William 
Danid Cornwell and his brother William 
Bradford Cornwell executors of his will and 
admtnistratora of his estate and eif ects, and in 
the event of his wife remarrying, guardians of 
his minor children, should she not however re- 
marry then she was to remain their guardian. 

The testatrix appointed her husband to be the 
executor of her will and administrator of her 
estate, both the testators giving and granting to 
their executors all such powers as are required 
or allowed by law and especially the power of 
assumption. 

Tbe teetator died on the 19th August, 1888. 

The respondent Cornwell is the surviving 

executor testamentary and the respondent 

Sfteytler is the executor assumed by him. 

The estate consists of certain buildings and 

in St. 6eorge*a-street, Cape Town, two 

in Bnitenkant-street, Cape Town, a 

at Green Point, shares in certain oom- 

the sum of £l,fiOO or thereabouts in Cape 

GoTemment Stock, and of various other things 

not necessary to be detailed. 

In terms of the will the applicant at first 
enjoyed the usufruct of the property, letting 
the same to tenants and taking the control 
thereof into her own hands, with the knowledge 
and consent of the execut«ir William Bradford 
CorawelL 

Thereafter the applicant married her present 
boaband, Harry Johnson Fnmivall, after which 
<iate Mr. Steytler was assumed as executor to 
the estate. 

The executors now contended that they were 
entitled to control and deal with the estate, and 
that the applicant's right was limited to 
receiving from them the rents and profits thereof 
after deduction of the usual commission. 

The applicant alleged that they had taken 
opoD themselves, without her authority, to let 
the landed property, to collect the rents thereof, 
to repair the same, and to pay premiums of 



insurance thereon, although she had given 
notice to the tenants that all rents should be 
paid to her, and although she was taking due 
care that i^he premises were properly repaired 
and duly insured. 

That one of the houses, " Blookroad Villa " 
at Green Point, was occupied by her, but that 
if the contention of the respondents was correct 
there was nothing to prevent them from eject- 
ing her and letting the same and paying her 
the rent. 

She maintained that the action of the 
respondents was not warranted by the terms 
of the will and was contrary to law. 

The first-named respondent in his answering 
affidavit deposed that the applicant married 
her present husband in June, 1^94, and that in 
July, 1894, he (respondent) assumed Mr. Steytler 
as executor, giving the applicant notice that 
the estate would be managed and controlled 
in future by the executors, who would charge 
for this management, for collecting the rents 
and keeping the pro])erty in repair, and for 
paying the rates, two-and-a-half per cent, on 
all mone? 8 passing through their hands, paying 
the balance to the applicant. That the deponent 
adopted this course in the interests of the 
minor children of his late brother, who were 
the heirs under the will, and that he deemed 
it his duty, as the widow had remarried, to see 
that the estate did not deteriorate in any way, 
but should pass to the children eventually after 
the death of the usufructuary in the same 
state in which it was left at the death of the 
testator. 

That the usufruct derivable from the estate 
and payable to the applicant was about £900 
a year. 

That the deponent was informed and verily 
believed that, in spite of the usufruct of £9C0 
a year, the applicant did in June, 1893, arrange 
for an overdraft with her bankers to pay the 
rates on the property, and in June, 1894, was 
again arranging for an overdraft for the same 
purpose. 

That the testator left at his death four chil- 
dren, of whom the eldest is about seventeen 
years of age and the youngest about seven. 

There was a replying sfhdavit from the 
applicant, explaining how it was that she was 
obliged to overdraw her account and stating 
that the estate had been well looked after 
while it was in her possession. 

Mr. Rose-Innes, Q.C., was heard in support 
of the application, and as to the common law 
rights of a usufructuary cited Voet (7, 1, 82, 36, 
37, 41 and 7, 6. 4); ffrotius (2, 89, 3) and Van 
der Xcettsel (Th. 871). He i^lso referred to 



16 



Hidditigh'i Cote (3 Juts, 441); Re Bett (2 
Shell, 377; 9 Juta, 488) ; Meyrsr, Meyrail Juta. 
877). 

Mr. Searle, Q.C., for the reepondent : The 
fti-st respondent was appointed not only executor 
but also administrator, and in case of the wife's 
remarriage he was appointed guardian of the 
minors. 

The terms of the will show that the testators 
were anxious for their children's benefit, and 
that they should receive the whole estate subject 
only to the survivor's life interest. 

If the applicant left the property in a neglected 
and dilapidated state the executors and adminis- 
trators might be held liable to the heirs when 
the latter came into the inheritance. The 
respondents therefore must have some control. 
The fact of the guardianship being taken away 
from the survivor in case of her remarriage 
and given to the administrators shows that the 
testators wished the latter to exercise some 
control. The applicant appears to be wasteful, 
as notwithstanding the fact of her receiving 
£900 she has on two occasions at least over- 
drawn her account. In an application of this 
kind the applicant must show that she has done 
all she could to protect the interests of the 
minors. 

As to the rights of trustees and administrators, 
see De Montniart v. Board of Executors (2 
Juta, 69). 

Mr. Rose-Innes, Q.C., in reply. 

Cvrla ad vuU. 

Posiea (February 4th) the Court delivered 
judgment. 

The Chief Justice said: By the last will of 
George Comwell and his wife (the applicant), 
the testators reciprocally bequeathed to the 
survivor the life usufruct of their joint estate 
and appointed their children as heirs of such 
estate, subject to the usufruct. The testator 
appointed his father and brother as executors 
of his will, administrators of his estate, and, 
in the event of his wife's marrying again, 
guardians of his minor heirs, but directed that 
she should be the guardian so long as she 
remained a widow. She, on her part, appointed 
her husband executor of her will and adminis- 
trator of her estate. The husband died first, 
and the wife was allowed by the executors to 
have the sole control of the estate left after 
payment of all debts. The estate consists of 
houses, Qovemment Stock, and shares in public 
companies, and the applicant let the houses 
and received the rent, interest, and dividends 
as they accrued until June, 1894. when she mar- 
ried again. The executors maintain that, since 
such remarriage, t* ey are entitled to manage 
and control the joint estate in order to protect 



the interests of the minors whose guardians 
they have become. The object of the present 
application is to have it declared that the appli- 
cant is entitled to the possession, custody, and 
control of the joint estate of which she has the 
life usufruct, and to restrain the respondents 
from interfering with her rights of control. 
The first observation I would make is that the 
remarriage of the applicant does not, under the 
will, confer on the respondents great-er rights of 
administration than they had before the appli- 
cant married again. The effect of her remar- 
riage is to deprive her of the guardianship of 
her children and to vest it in the respondents. 
As guardians the respondents are of course 
entitled, nay bound, to protect the rights of the 
minors, but that protection must be afforded in 
a regular way and not by the assumption of 
an authority which is not legally committed 
to them. If they are not entitled to 
the actual control of the property, they hare 
other means of effectually protecting the 
minors. 1 hey may guard against the risk of 
misappropriation or waste by demanding 
security from the usufructuary, but no such 
demand has been made in the present case. 
What the respondents claim is that they should 
act as trustees for the usufructuary and heira, 
and receive a commission upon all sums re- 
ceived by them by way of rent, interest, divi- 
dends, or otherwise. I am not prepared to Bay 
that it would have been impossible for the tes- 
tators to deprive the survivor, after adiation, of 
the right to administer the joint estate, although 
entitled to the life usufruct. If the respondents 
had been appointed administrators of the joint 
estate, that circumstance would have afforded a 
strong indication of the testator's desire that 
the survivor should l)e deprived of the ordinary 
rights of a usufructuary in regard 
to the control of the property, of 
which she is entitled to the rents and profits. 
But her rights of control as usufructuary are fo 
clearly recognised by all the authorities that 
nothing short of the clearest indication to the 
contrary can deprive her of it. The will in 
question appoints the respondents as adminis- 
trators of the husband's estate only. The pro- 
perty of which the applicant has the usufruct 
is the whole of the joint estate. That estat-e 
is to devolve unimpaired upon the childron of 
the testators on the termination of the appli- 
cant's life usufruct, and thero is no provision 
for a division of the joint estate during the 
interval. The only way in which effect could 
possibly be given to the words appointing the 
respondents as administrators of the husband's 
estate would be by holding that they are trustees 
of half the joii^t estate, and that, as to th^ 



17 



other half, the applicant ia free from their oon- 
tnl, but such an arrangement would be 
quite unworkable and cannot therefore be 
deemed to have been contemplated. The ques- 
tion is not free from difficulty, but, upon the 
whole, I have come to the conclusion that the 
applicant did not intend, by being a party to the 
mutual will in queetion, to deprive herself of 
the ordinary rights of a usufructuary. She haS 
deprived hereelf of the right, after adiation, to 
to claim one-half of the joint estate as her 
absolute property, but, on the other hand, she 
has acquired the right to administer, during her 
lifetime, the whole of the joint estate in 
order to the due enjoyment of her life 
usufruct. The application must therefore be 
granted, with costs, without prejudice to any 
claim the respondents may have to claim 
security on behalf of her minor children. 

Their lordships concurred. 

[Applicant's Attorneys. Messrs. Fairbridge, 
Ardeme & Lawton; Respondents' Attorneys, 
». Van Zyl & Buissinn^.] 



Ex parte SMTTB.— Be TITTERTOTH'S i 1896. 

B8TATB. ( Feb. Ist. 

Assumption, substitution, and surrogatiou — 

Executors — Letters of admiKistration — 

Ordinance No. 104. 
The substitution and surrogatiou of executm's 

have heefi beett put an end to by OrdinaJice 

No. 104. 
AppliciUiou to authorise and' require the 

Master of the Supreme Court to issue letters 

of administration in favour of a surrogated 

executor refused. 

This matter came before the Court on notice 
of motion to the Master that he would be called 
upon to show cause why he should not be 
ordered to grant letters of administration to the 
applicant as executor testamentary in the estate 
of the late William Titterton. 

The facts set forth in the petition were as 
follows : 

By the mutual last will and testament of the 
late William Titterton, of Kraga Kama, and his 
wife Blisabeth Titterton (bom Parkin), dated 
9th February, 1862, the survivor of them together 
with lasiah Titterton and William Parkin, of 
Port Elizabeth, were appointed executors of 
the will, administrators of the estate and guar- 
dians of the minor children of the testators, 
withfuUpower of assumption, substitution and 
surrogation, 

Bubeequently by a codicil to the will the 
testators revoked the appointment of the 

P 



executors as far as the said Titterton and 
Parkin were concerned, and appointed in their 
place William Minett Frames to be executor 
jointly with the survivor. 

By a further codicJ dated 30th October, 1886, 
the appointment of Frames as executor was 
revoked, and the survivor was left as the sole 
executrix. 

Elizabeth Titterton survived her husband and 
took out letters of administration as executrix 
testamentary. 

On 12th May, 1886, the survivor Elizabeth 
Titterton executed her last will disposing of 
her share of the joint estate, and inter aUa 
appointing Charles P. W. Mouat and William 
B. Frames to be executors of her will and 
administrators of her estate and also of the 
joint estate of herself and deceased husband. 

By a codicil to her last will dated 22nd 
September, 1892, Elizabeth Titterton revoked 
the appointment of Mouat and Frames as 
executors of her will and administrators of her 
estate, and also the appointment in the joint 
estate of herself and deceased husband, and 
nominated in their place the petitioner in his 
capacity as the secretary of the Aegis Assurance 
and Trust Company of Port Elizabeth (Limited), 
and the secretary of that company for the time 
being to be the executor and administrator of 
her estate, and also by virtue of the power of 
surrogatiou granted to her in the mutual will 
of herself and predeceased husband, she nomi- 
nated the petitioner executor and administrator 
of the joint estate of herself and predeceased 
husband. 

Elizabeth Titterton died on 1st January, 1895, 
and the petitioner filed the will and death 
notice with the Magistrate at Port Elizabeth. 

The petitioner applied to the Master for his 
appointment as executor in the estate of the 
late Elizabeth Titterton, and also for his 
appointment as executor in the estate of the 
late William Titterton. 

The Master granted letters of administration 
to the petitioner as executor testamentary in 
the estate of the late Elisabeth Titterton, but 
declined to grant the petitioner letters as 
executor testamentary in William Titterton 's 
estate. 

Under these circumstances the petitioner 
prayed for an order authorising and compelling 
the Master to grant letters of administration as 
executor testamentary in the estete of the late 
Williom Titterton by virtue of the appointment 
made in the codicil to the last will of the late 
Elizabeth Titterton, dated 22nd September, 1892, 
or for other relief, and that the costs might be 
ordered to come out of William Tittertoq's 
estate. 



18 



The position taken up by the Master was that 
as the Ordinance only deals with the appoint- 
ment of executors testamentary, dative and 
assumed, our law recognises no such person as a 
surrogated executor. 

Mr. Roee-Innes, Q.G., in support of the 
application : It is clear that under the common 
law of Holland executors and guardians who 
had the power of surrogation could appoint 
others to act in their places after their death ; 
Van der Linden (p. 41). A form is also found 
in Van Alph&n (Vol. 11., p. 607) ; also Tennaikt's 
Manual (p 328), although at page 142 he says 
that the substitution and surrogation of an 
executor or tutor have virtually ceased to have 
eilect. But see Schedule 12 of the repealed Act 
3 of 1864. 

The Master takes up the position that as only 
three classes of executors are recognised by 
Ordinance 104 he cannot issue letters to any 
others. Special provision is made with regard 
to assumed executors (section 24) and see 
section 19. .But the Ordinance does not deal 
with assumed executors as a clast^ they are all 
either testamentary or dative (Schedule "B"). 
And by section 37 the law is left unchanged in the 
absence of express repeal. There is no express 
repeal here, therefore the old law stands. The 
question is not one of policy, because virtually 
the same thing can be effected in another way. 
An executor may assume another. That other 
may take out no letters but after the death of 
the original executor he may apply for letters, 
and is practically a surrogated executor in 
everything but name. BfteDeKortew Hofmeyr 
(1 Juta, 306). 

The application was refused. 

The Chief Justice said : This case illustrates 
how questions of law may crop up which the 
profession has long regarded as being finally 
settled. For myself, I have always assumed 
that the substitution and surrogation of execu- 
tors were put an end to by Ordinance No 1(H, 
and this view was expressed by Tennant in his 
book on Notarial Practice as far back as 1844. 
That is no reason why full consideration should 
not be given to Mr. Innes*s argument in favour 
of the contrary view, but, after again reading 
the 19th and 24th sections of the Ordinance, the 
conclusion appears to me inevitable that the 
Court can no longer give effect to the substitu- 
tion and surrogation of executors. The 
only indirect mode of appointing executors 
recognised by the Ordinance is that of *' assump- 
tion.'* The 19th section of the Ordinance 
enacts that the estates of all persons 
shall be administered by virtue of letters of 
administration to be granted by the Master to 
executors testamentary and dative "in manner 



hereinafter mentioned," and nowhere in th« 
remaining sections of the Ordinance is any 
reference made to substituted or surrogated 
executors. The omission is significant when 
we find express provisions for the assumption 
of execut-ors, a mode of appointing executors 
which, in works on the Roman-Dutch law, is 
always treated in connection with the two 
other indirect modes of appointment. The 
24th section enacts that nothing in the 
Ordinance contained shall prevent any testa- 
mentary executor from assuming any other 
person as executor under any power for that 
purpose committed to him by the testator. 
The section proceeds to direct that an assumed 
executor shall not act without obtaining letters 
of administration, and that all the provisions 
relating to executors dative shall apply to 
assumed executors. One of these provisions 
is that he shall give security for due adminis- 
tration, and if Mr. Innes's contention were correct 
there would be this anomaly : that a person 
assumed and appointed to act with the executor 
testamentary is to give security but a person 
surrogated to act alone is free from any such 
obligation. I am clearly of opinion that the 
Master is not bound to issue letters of adminis- 
tration in favour of the surrogated executor, 
and that this application must be refused, with 
costs out of Mrs. Titterton's estate. 

Mr. Justice Buchanan concurred on the same 
grounds. The appointment of an assumed 
executor, even after the death of the original 
executor, was not of such moment, as the law 
provided that the assumed executor should in all 
cases give security. It virtually placed him in 
the same position as an executor dative. 

[Applicant's Attorneys, Messrs. Van Zyl Sc 
Buissinn^.] 



MASON v. MASON. 



f 1895. 
\ Feb, let. 

This was an action for restitution of conjugal 
rights, instituted by the plaintiff against defen- 
dant, on the grounds of malicious desertion. 

Mr. Molteno for the plaintiff 

Defendant in default. 

Mr. Norman Lacy gave formal evidence of the 
marriage of the parties. 

Mar}' Ann Bmma Elisabeth Mason, plaintiff, 
said that she was married at Wynberg to the 
defendant, John William Mason, on January 20, 
1886. She still lived atWynberg with her 
mother. Her husband was a confectioner. 
Four months after the marriage they went to 
Kimberley and lived there happily for three 
years, when the home was broken up and her 
husband went to Johannesburg, sending her back 
to Wynberg. While there she heard that her 



19 



huBbttnd had been arrested in the Free State 
for theft. He was subHequently sentenced to 
eighteen months' imprisonment. He escaped 
from prison and returned to ^ynberg four 
years ago, but was arrest-ed again. Had not 
heard of him since then. She had ascertained 
that he again escaped from prison, and that 
there was a warrant of arrest out against him. 
There were three children, and she supported 
herself and her children by dressmaking. Was 
married in community of property, and she 
prayed for a forfeiture, She had ascertained 
from the police that there was a charge of 
murder against the defendant in the Transvaal, 
and that he had disappeared. 

Order granted for restitution of conjugal 
rights, returnable on 31st March, failing which 
respondent to show cause on the 12th April why 
a decree of divorce should not be granted, with 
forfeiture of benefits by virtue of the marriage 
in community of property, plaintiff to have the 
custody of the children, publication to be as 
before. 



IN THB E8TATB OP THE LATE lOMATIUB 8. 

FEBBBIBA. 

Mr. Oraham moved to make abso- 
lute the rule nUl issued under the Titles' 
Registration and District Lands Act, 
for registration in the name of the said estate 
of the remaining extent of the perpetual quit- 
rent place, Geelhoutboom, in the district of 
Humansdorp, omitted in error from the sub- 
divisional transfer in 1885. 

Order granted. 

THB PBTITION OF ANNA HUMPHBIB8. 

Mr. Qraham moved for authority to peti- 
tioner to cancel the sale of certain farm, 
known as Eland's Rivior Poort, to 
her minor children by her first husband, and to 
take transfer thereof into her own name, with 
power to sell or mortgage the same, and execute 
all necessary deeds without the assistance of 
her present husband, from whom she is living 
apart. 

Order granted for the cancellation of the sale, 
as the purchasers consent to it, and authorising 
the petitioner, as the executrix, and the executors 
of the first husband's estate to raise oo mortgage 
the snm of £1,360 for the purpose of paying six 
of the children the moneys due to them out of 
the estate, the costs of the mortgage, and of this 
application. 

DA SILVA V. DA 8ILYA. 

Mr, Jones moved to make absolute the 
rale am for dissolution of the marriage sub- 



sisting between the parties by reason of re- 
spondent's failure to obey the order for restitu- 
tion to his wife of her conjugal rights, and for a 
declaration that applicant is entitled to the 
custody of the minor child and a monthly pay- 
ment towards its maintenance. 
Order granted. 



PBBTOBIUS V. OBEBF. 

This was an application by the re- 
spondent to set aside certain order obtained by 
applicant on the 29th November last, whereby 
the printing plant and apparatus on re- 
spondent's premises at Britstown were placed 
under attachment pending an action for re- 
covery of rent due in respect of the said 
premises. 

Mr. Searle for the applicant. 

Mr. Shell, for the respondent, applied for a 
postponement on account of the illness of the 
respondent, and the case was adjourned sine dU, 
not later than the last day of term. 



MALCOLM'S TBU8TBB V. HAASE, VAUGHAN AND CO. 

Application by the defendants to set aside cer- 
tain judgment obtained by plaintiff on the 1st 
August last, under the 329th rule of Oourt, and 
for leave to enter appearance and to defend the 
action. 

Mr. Shell for the applicants. 

Mr. Benjamin, for the respondent, applied for 
a postponement on the ground that he had been 
instructed only that morning. 

The case was postponed till Monday. 



IN THE INSOLVENT ESTATE OF DANDEL V. B. 

BNQBLS. 

For the appointment of a provisional trustee 
to the said estate with power to carry on the 
business of the insolvent and to collect out- 
standing debts. 

Order granted, appointing Mr. Reed pro- 
visional trustee. 



THE MASTER Y. PBINS' EXBCUTOB. 

For an order for the personal attachment of the 
respondent for contempt of oourt by reason of his 
failure to file an account of his administration 
and distribution of the estate of the late Regina 
Prins, as directed by judgment, dated the 29th 
November last-^ so to do. 

Order granted. 



IN THE ESTATE OF THE LATE ADAM T. BURDBTT. 

Mr. Watermeyer applied for an order for 
the removal from his office as one of the 



20 



executor! of the said estate of Thomas O. Sheard, 
by reason of the sequestration as insolvent of his 
estate, and his departure from the Colony. 
Order granted. 



DICKSOM V. DICKSON. 

Mr. Watermeyer applied for extension of the 
return day of the citation issued by applicant 
in the proceedings instituted by him in an action 
against his wife for restitution of conjugal 
rights, falling which for divorce, by reason of 
her malicious desertion. 

The order was granted. 



M OORATH V. MOORATH. 

Mr. Molteno moved to make absolute the 
rule nf ft for dissolution of the marriage subsist- 
ing between the parties, by reason of respon- 
dent's failure to obey the order for restitution to 
his wife of her conjugal rights, and for a 
declaration that the applicant is entitled to 
the custody of the minor child of the marriage. 

Order granted. 



SMITH V. SMITH. 

Mr. Shell applied for extension of the return 
day of the rule nUi requiring respondent to 
show cause why applicant, his wife, shall not be 
admitted to sue him in forma pauperU in an 
action for restitution of conjugal rights, failing 
which for divorce. 

Order granted, extending the return day to 
first day of next term. 



DAY V. DAY. 

In this suit, in which the husband sues his 
wife for restitution of conjugal rights, failing 
which for divorce, Mr. McLachlan applied that 
the service of the summons should be considered 
sufficient* 

The Chief Justice said that he had received a 
letter from the wife in England stating that she 
left her husband owing to his violence ; that she 
was willing to return to her husband, but had 
not the means. When the case came on, therefore, 
these facts would be borne in mind. 



Me BLBBUBCH. 

Mr. Graham moved for the appointment of a 
ovTiUor ad Utem to protect the interests of the 
minor in the partition of certain farms. 

The Court made an order similar to that made 
In re Ca/inpher (5 Juta, 75), and appointed Mr. 
Schweitzer e^irator ad Utem, 



BBOIKA V. WILLIAMS. 



f 1896. 
I Feb. Ist^ 



Liquor licence Act 28 of 1883, section 89 — 
No proof of prohibitioo. 

W. was charged with and convicted of con- 
travening Act 28 of 1883 ^ nection 89, in thai 
he sold liquor to one H , to whom the aale of 
liquor hud been forbidden for a period of 
twelve months under the 89th section. 

No proof looA produced at the trial that H 
had been forbidden liquor, nor icas there any 
evidence to shorn that W. had any knowledge 
of the jpfohibition. 

On appeal the cofwiction was quashed. 



This was an appeal from a sentence passed 
upon the appellant by the Resident Magistrate 
of Willowmore. The accused was charged with 
the crime of contravening section 89, Act 28 of 
1883, in that he did on or about the 20th day of 
December, 1894, wrongfully and unlawfully 
supply or cause to be supplied to one Michael 
Hendrik, of Willowmore, a certain quantity 
of Cape brandy or other intoxicating liquor, to 
wit, '^ one liquor," or thereabouts, to the said 
Michael Uendrik, well knowing at the time that 
the supply of intoxicating liquor to the said 
Michael Hendrik had been prohibited by an 
order of the Court of the Resident 
Magistrate of Willowmore for the period 
of twelve months from 9th March, 1894. 
There was nothing on the record to connect 
Williams with the offence further than the 
charge in the charge-sheet. There was no 
proof that Hendrik had been prohibited by an 
order of Court. The Magistrate's order was not 
produced, nor was there any evidence g^ven as 
to the prohibition, further than one statement 
made in cross-examination that Hendrik 's 
liquor had been stopped, but no proof was 
given that the accused had any knowledge of 
the prohibition. 

The accused was found guilty, and sentenced 
to pay a fine of £3, or in default one month^s 
imprisonment with hard labour. 

From this sentence the accused now appealed. 

Mr. Searle, Q.C., was heard in support of the 
appeal. 

Mr. Giddy, for the Crown, said that he was 
not in a position to support the conviction. 

The conviction was quashed. 

The Chief Justice f-aid: It is much to be re- 
gretted that the evidence in this case was sub- 
mitted in such a loose manner. This 89th sec- 
tion contains one of the most wholesome provi- 
sions of the Liquor Licensing Act, and I am 



Si 



tbtidihfttits provisions are almoBt a dead 
hotter; and now tliat t.li.ere is a conviction the 
Court is compelled to quaeli it owing to the loose 
wtj in whidi tbe evidence was bronght forwaid. 
Iberew no evidence wliatever that there was a 
pfdbibition. T\ie Act says that there shall be 
iBoittoT of pToliibition in writing, and the pro- 
dnelkvQ ol aocli an order would be the best 
endeneeot prohibition. There is further no 
c^idKooe that Williams had knowledge of the 
prohibitioii. The conviction must be quashed. 
TbeVr YordBhips concurred. 
\.XppellanCa Atiomeys, Messrs. Van Zyl & 
Boitniine.^ 



BBGIMA V. WABE. 



j 1896. 
(Feb. 1st. 

Prodamatiou 343 of 1894 — Sale of liquor 
withoat a licence — Convictiou — Partner- 
ship—Servants. 

In Jatnuiry^ 1894^ a liqutyr licence wan granted 
U» B., icho at thai date carried on buninem at 
the Royal Hotels Kokatad, 

In the following Not>ember, B. left the Colony. 

BeffJTf B. Uft he handed the huHtnetut over to 
A«. whom h^ had taken into 2)arlnerHhip 
90ine time preciouslyk 

Oh the 29th Noceniher, A. applied for a 
tran$fer of the licence to him and it was 
transferred on the 6th December. 

On the 2ud December^ W., mho teas in B's 
mrrice before he left the Colony^ and tcho 
remained in A's, aervice after B's. dejxir- 
Uire^ teas charged irith and convicted of 
welling liquor without a licetice in contraven- 
tion of the Proclamatimi 343 of 1894, 
i*erAion 10. 

Held on appeal, that although the evidence 
urould have been sufficient to justify Ws. 
conviction for contravening the 4th aiul 6th 
sections of the Proclamation^ his conviction 
under the 10 fh section was wrofig^ as W. 
teas authorised by A. to sell liquor under 
the licetice granted to hin jHirtfter B. 



This was an appeal from a sentence passed 
open the appellant by the Resident Magistrate 
of Kokstad. 

The appellant was charged with the crime of 
oofitraTening section 10, Proclamation 343 of 
1891, in that upon or about the 2nd day of 
I>eoember, 1894, and at or near the Royal Hotel, 
Kokstad, the said James W. Ware did wrong- 
folly and ulawfully sell deal, or dispose otf 



intoxicating liquor, to wit, half a bottle of 
brandy and one glass of brandy, to ona 
Masende without a licence as by law provided. 

The prisoner pleaded not guilty. 

Sections 4, 6 and 10 of the Proclamation are 
as follows : 

4. The said licences shall authorise the sale 
of intoxicating liquor, in any quantity, on the 
premises to be specified in such licence, between 
the hours of eight o'clock in the morning and 
six o'clock in the evening, on any day other than 
Sunday, Good Friday, and Christmas Day : 
provided that in the case of licensed premises 
situate at any seat of magistracy, any person 
authorised under section 2 to issue a licence 
may extend the above hours to eleven o'clock in 
the evening, subject to such conditions and restric- 
tions as may be deemed reasonable in the 
special circumstances of the case. 

5. No intoxicating liquor shall be sold, given, 
supplied or delivered by the holder, of any such 
licence to any native unless he shall produce a 
permit signed by a magistrate authorising the 
bearer to obtain a specified quantity of such 
intoxicating liquor. 

10. Any person who shall, contrary to these 
regulations, sell, deal, or dispose of intoxicating 
liquor without a licence, or who, being a holder 
of a licence, shall sell or ofEer, or expose for 
sale or deal, in any such liquor at any place 
other than the place where he is authorised by 
his licence to deal in such liquor, or during any 
time when he is not authorised so to deal, or in 
violation of any condition of his licence imposed 
under section 4, shall be liable upon conviction 
before the magistrate of the district in which 
the offence is committed, to a penalty not 
exceeding £50, or in default of payment to 
imprisonment, with or without hard labour, for 
a period not exceeding six months. 

Ware, and several witnesses who were called 
for the defence, denied that he had sold the 
brandy to Masende on the day in question. 
There was evidence to show that Anderson, 
the present lessee of the Royal Hotel, applied 
for a transfer of the licence to his own name 
on the 29th November and that the licence 
was transferred on 6th December. The further 
facts appear from the Magistrate's reasons, 
which were as follows : 

In this case accused has been charged under 
the provisions of Proclamation No. 243 of 1894, 
with selling liquor at the Royal Hotel, Kokstad, 
without a licence. 

It would appear that a licence was granted 
to Mark Blow in January, 1894, but in Novem- 
ber last Blow quitted the Cape Colony with 
the intention of not returning. Before leaving 
he handed over the business at the Royal Hotel 



22 



to one Anderson, whom he had taken into 
partnership some time previously. The licence 
was not however transferred to Anderson until 
6th December (four days after the alleged sale 
by accused), and consetiuently the sale of liquor, 
during the interval Ijetween BIow*s departure 
and the transfer of the licence, would practi- 
cally be without a licence. 

As regards the question of fact as to whether 
accused sold the liquor or not I may say 
that I believe the evidence of Masende, J. 
Christian and Demmer, witnesses for the prose- 
cution, on this point. It is true there is a 
slight discrepancy between Masende's statement 
and Christian's as to where the bottle of liquor 
was handed over to Demmer, but I do not 
think this affects Masende's credibility, as I 
am satisfied he did not understand the distinc- 
tion between the terms *'of)ice and house." 
The Chief Constable (Demmer, to whom the 
liquor was handed at his house by Christian 
after the latter had received it from Masende, 
who was employed by Christian to trap Ware. 
— Mep,) being an official any place he occupied 
would not unreasonably be regarded as his 
office by an ignorant native, who cannot be 
expected to know the difference between an 
office and a house. The term office is a 
familiar word to natives and they always 
associate it with officials. 

In my opinion the evidence of accused is not 
worthy of credit. He states that he left the 
Royal Hotel at 9.30 a.m. and went to church 
with his wife, but in this statement he is not 
borne out by his witness Lehman. 

Lehman states moreover that he was twice 
there (meaDing the Royal) on the day in 
question, vis., in the morning and before dinner 
time. As for the native witnesses for the 
defence, I do not believe their evidence. It is 
very remarkable that they could remember 
every little incident that occurred on this parti- 
cular 8unday, and yet their recollections are so 
confused in regard to the Sundays before and 
after it. The way too in which they gave their 
evidence was not calculated to inspire confidence 
in their credibility and I feel no hesitation in 
characterising it as untrue. I find therefore 
that accused sold the bottle of liquor to Masende. 

The accused was found guilty and sentenced 
to pay a fine of £10, or in default of payment 
to be imprisoned for two months. 

From this sentence the present appeal was 
brought. 

Mr. Juta, Q.C., for the appellant: Two 
questions have to be decided : (1) the question of 
law (2) ; the question of fact ; on both of which 
the appeal must succeed. As to the law it is 
dear that there was a licence in ezistence on 



the date of the alleged offence. Blow and 
Anderson lieing partners and Ware being as 
much the servant of one as of the other. If 
the Magistrate's finding on the facte was 
correct there would have been no defence 
if the accused had been charged under 
section 6 of the Proclamation, but he was 
charged with a contravention of section 10, 
and as Blow still held a licence the conviction 
was clearly unlawful. On the question of fac^ 
there was abundant evidence that the sale, if 
effected on the day in question, was not effected 
by Ware. 

Mr. Giddy for the Crown : On the date of the 
sale Anderson held no licence ; if he did hold a 
licence, what could have been his reason for 
applying for a transfer to him on the 29th 
November 7 

On the question of fact there was abundant 
evidence in support of the Magistrate's finding. 

The Court allowed the appeal. 

The Chief Justice said : Had Ware been 
convicted of selling liquor to a native or selling^ 
liquor on Sunday the evidence would have been 
sufficient to justify the oouviction ; but the 
charge on which he was convicted was that of 
selling liquor without a licence, but Anderson 
and Blow in partnership took out a licence and 
engaged Ware, and when Blow left Ware^a 
old authority to sell remained in force, and 
there was nothing to show that Ware had sold 
without a licence. He was authorised to sell 
by Anderson under the licence given to Blow. 
It is to be regretted there has been a failure of 
justice, but a man cannot be convicted for an 
offence other than that of which he was guilty. 
The conviction must therefore be quashed. 

Their lordships concurred. 

[Appellant's Attorneys, Messrs. Van Zyl & 
Buissinn^.] 



BENJAMIN V. BENJAMIN. 



5 18 
I Feb. 



1896. 
4th. 

This case stood over from last term for proof 
of the marriage. 

Mr. Graham, for the plaintiff, now called 

Mr. David Tennant^ who produced the certifi- 
cate of marriage between the parties. 

The Court granted a decree of divorce, an 
order declaring the deed of separation to be of 
no further effect, and giving the plaintiff 
the custody of the child of the marriage, and 
costs. 



ANDEBSON V. ANDBBSON. 



f 1895. 
(Feb. 4th. 

This was an action for restitution of conjugal 
rights, failing which for divorce, on the grounds 
of the defendant's malicious desertion. 



23 



Mr. Qraham for tkie plaintiff. 
Defendani in default. 

Mr.Konnaii Xiacsy g^'ve formal evidence of 
tbemarria^ between tbe parties, which took 
plaoe in Much, 1878. 

Peter Andm^on deposed, that he resided at 
Portmisabeth. The aigrnatareson the marriage 
certifieate CpToduced) were those of himself and 
his wife. lie I Wed happily with his wife for 
thne years after the marriaf^e. Then, in 1881, 
she left hia house at Mowbray without his know- 
le^lge for three days. He found her at Ronde- 
bosch, and \iTOU|tht her back, but she left again 
the same night, and he received a summons for 
laanlting hia wife, which was dismissed, 8he 
then disappeared for some weeks, and witness, 
not being able to find her, went to Port Eliza- 
beth. He retomed to Cape Town in November 
la^. and from information received from one 
William Henry Nelson went to Rondebosch, and 
found she was in service there with Mri«. 
Fletcher. She said she would rather drown her- 
self than go back to him. He had treated her 
well, and there was no cause for her desertion. 
He was still willing to take her back. There 
were no children. The summons for assaulting 
his wife was dismissed by the Magistrate. 

The Court granted an order for restitution of 
eonnigal rights, the respondent to return on or 
before I5tii ApriL failing which to show cause 
on lath May wb3' a decree of divorce should not 
be granted. 



HAASE, VAU6HAN AND CO. V. 
MAIiOOUf '8 TBU8TEE. 



f 1895. 
<Feb. 4th. 



Setting aside judgment — Kale of Court 329 — 
Knteriug appearance — Mistake. 

This was an application under the 329th 
Rule of Court to set aside a judgment for 
£318 10a. 6d. with costs, which was granted on 
1st Augost last by default, in consequence of 
the present applicants (then defendant-s) not 
having entered appearance. 

The circumstances under which the defendants 
were in default were as follows : On the 18th 
July the power to defend was filed with the 
Acting Registrar, but appearance was not 
entered in the appearance book, but on the 19th 
July the def ndants* attorneys wrote to the 
plaintiff's attorneys informing them that the 
power had been filed and appearance entered. 

Afterwards on l^t August the plaintiff moved 
for judgment in default under rule 329. and the 
fact that the power had been filed on the 18th 
July not having been brought to the notice 
of tte Court, jodgmeiit was granted as prayed 

tb costs* 



The applicants, after explaining how it was 
that the mistake had been made, now alleged 
that Malcolm had no claim against them, ex- 
cept for the sum of £32 166., for which they 
were willing to allow him credit ; that he was 
not their servant nor agent, but the manager of 
the Mercantile Corporation of the United States 
and South Africa (a company now in liquida- 
tion), employed at a salary of £400 a year ; and 
that if he had any claim it was against that 
company and not against the applicants, but 
that on the contrary they had a claim against 
him of £2,000 in consequence of losses occa- 
sioned through Malcolm's fraud and deceit* 

Under these ciroumstances the applicants 
asked that the judgment obtained on 1st August 
last should be set aside, and leave given to 
them to enter appearance and defend the action. 

Mr. Shell was heard in support of the applica- 
tion. 

Mr. Benjamin, for the respondent^ relied on 
Saunders v. Joms (3 D. & L., 473) and Ryni^r v. 
Solotnon (2 Shell, 360). 

The Court set aside the judgment of the 1st 
August, 1894, and ordered the case to be re- 
opened. 

The Chief Justice said : The whole difficulty 
in this case arises out of a misapprehension of 
the clerk employed by the defendants' attor- 
neys. On the 18th July he filjd with the then 
Acting Registrar a power to defend, and he 
seems to have been under the impression that 
this filing of the power was tantamount to 
entering appearance. It is quite clear that he 
was mistaken, as appeai-n from his letter of the 
19th July to the plaintiff ^s attorneys, in which 
he states that the dcfendanta had entsred an 
appearance. Well, the case came before the 
Court on the 1st August, an 1 the Court was 
then informed that no appearance had been 
entered by the defendants. Technically the 
Acting Registrar was right, Init I think he 
ought to have informed the Coiirt that although 
no appearance had l)een entered the power to 
defend had been filed. It is still open to the 
Court to re-open the case, and I think under all 
the circumstances, (juite independently of the 
merits of the ca<^e, it should be re- 
opened. At the same time I think there 
has been considerable delay on the part of the 
defendants in asking for the re-opening of the 
case. Judgment was ;;iveu on the 1st August, 
and the application should liave been made 
long before the present date. The Court will 
now grant an order under rule 329, the costs of 
this application to stand over. What should 
have been brought to the notice of the Court 
on the 1st August was the misapprehension that 
existed as to the filing of the power which 



24 



was considered as amounting to entering 
appearance. That clearly should have been 
brought before the Court. The form of the 
order will be that the judgment is set 
aside, costs to stand over. Costs will not abide 
by the action, because it is quite possible that if 
the defendants succeed they may have to pay 
part of the costs. 

Their lordships concurred. 

[Applicants' Attorneys, Messrs. J, Sc H. 
Reid and Nephew; Respondent's Attorneys, 
Messrs. Du Frees & Walker.] 



BOSS V. FABMEfi. 



I Feb. 



1895. 
4th. 



Splitting of claims — Exception— Slander — 
Wrongful dismissal — Damages — Magis- 
trate's jurisdiction. 

R. imued two HummoiineH against F., one claim- 
ing £20 damages for dander and the other 
£20 damages for icrongful disminnal. 

The slaitderouH words were spoken and the 
wrongful dismissal took place an the same 
date. 

Th4i Magistrate^ before whom the first case 
was heard ^ sustained an exception that there 
had been a splitting of claims. 

Held, rerersing the Magistrate's decisimi^ 
that there was no such legal connection 
between the two claims as to make a judg- 
ment in one decisive in the other. 



This was an appeal from a decision of the 
Assistant Resident Magistrate of Cape Town 
in an action in which the present appellant, 
plaintiff in the Court belo^, sued the respondent, 
defendant, for £20 damages for slander. 

The sammons alleged that on or about the 
.%^ December, 18M, and at Cape Town, the 
defendant did falsely and maliciously, and in 
the presence and hearing of Frank Gray, speak 
and publish of and concerning the plaintiff the 
following false and slanderous words, namely : 
" Vou'' (meaning the plaintiff) ''are a damfied 
dirty thief; you sold my books and took 
money for them and did not hand it over to 
fue,'' (meaning thereby that the Faid plaintiff 
embezaled the money) ** Yon are a Qod-damned 
thief ^' Whereby and by reason of such slan- 
der as aforesaid the said plaintiff has suffered 
damage in his fair name and character to 
the amount of £20 sterling, and he prays tiat 
the defendant may be adjudged to pay the 
same with costs of suit. 



The defendant excepted to the Magistrate's 
jurisdiction on the following grounds: 

That plaintiff has sued defendant for £20 
damages for slander in this Court. That 
he has also issued a summons in this Court for 
£16 13s. 4d. sterling for wages alleged to be due 
by the defendant, and a further claim for £20 
damages for wrongful dismissal. That inas- 
much as these three claims together are beyond 
the jurisdiction of this Court defendant exoe]>ts 
to the jurisdiction, the whole amounts claimed 
making a total of £56 13s. 4d. 

Defendant further excepts and says that 
plaintiff cannot divide and split up 
his claim and issue three separate summonaea 
for the amount of his claim, and so by these 
means endeavour to bring his claim within the 
jurisdiction of this Resident M agistrate. There- 
fore the defendant excepts to the plaintiff*s 
summons on the ground of his splitting of 
claims, and that this Court has no jurisdiction 
to try same, as these three amounts of £30 and 
of £20 and £16 18s. 4d., together £66 ISs. 4d., are 
beyond its jurisdiction. 

Two other exceotions were filed by the defen- 
dant, but for the purposes of this report it is 
not necessary to give them in detail. 

The Magistrate sustained the exceptions with 
costs, the following being his reasons : 

In this case defendant is summoned for £30 
for damages for certain slanderous words 
spoken and published on the 3rd De:)ember, 1894, 
concerning the plaintiff. The defendant takes 
four exceptions to the jurisdiction of the Court 
on the g^unds set forth in the written excep- 
tion filed (marked " A " and attached to record). 

Having heard the evidence on the exceptions 
I find that on the day of hearing of the present 
action another action is pending in this Court 
between the same parties in which the plaintiff 
seeks to recover from defendant the sum of 
£20 for damages for wrongful dismissal on 
8rd December, 1894, being the same dat<) on 
which the alleged slander was published. 

I consider that as these two actions accrued 
on one and the same day, viz., 3rd December, 
1894, and both actions being for damages (£20 
each) by the servant against his master they 
are so closely connected that it is not competent 
for the plaintiff to (ue in this Court without 
splitting his claim. Upon these grounds alone 
I consider that exceptions one and two should 
be sustained. Mvnicipdlity of Steynsbtirg v, 
areen (3 B.D.C., 239). 

From this judgment the plaintiff now 
appealed 

Mr. Molteno for the appellant : There is no 
similarity between the present case and Muni- 
oipality of Steynsbvry v. Green relied on by 



26 



the MagUtraie, whose attention oould not haye 
been directed to Van der Hewer v. Van Rooyen 
(4 Sheil, 73), which is oonclusive on the point. 
j?here is no connection between the claim for 
damages for slander and that for wrong Cul 
disibiBsal. 

Mr Searle, Q.C, for the respondent: The 
Magistrate's finding was correct ; the two claims 
arise from one cause of action. The plaintiff 
should not be allowed to harass the defendant 
with a nuDoiber of actions. If his claim be in 
exf^ess of the Magistrate's jurisdiction he can 
come to the Supreme Court. 

The appeal was allowed with costs. 
. The Chief Justice said : The summons in this 
^case claims damages for slander uttered oo the 
3rd December, 18i^i, by the defendant, the 
words being set out in the summons. To the 
summons an exception is taken that it is be- 
yond the jurisdiction of the Magistrate, ioas- 
much as there has been a splitting of demands. 
The splitting of demands is alleged to consist in 
the fact that another summons has been 
issued against the defendant for wrongful 
dismissal on the same day, and the Magistrate 
.came to the conclusion that because the two 
eyents happened on the same day, namely, the 
wrongful dismissal and the slander, and because 
both actions were for damages that therefore 
there was a splilting of demands. In my opinion 
the Magistrate was entirely wrong, as there was 
not such a legal connection between the two 
esses as to make the judgment in the one deci- 
sive in the other ; the two cases seem perfectly 
distinct. The one cause of action is for the utter- 
ance of words of slander, and the other is for 
wrongful dismissal. The fact that they hap- 
pened on the same day does not effect a legal 
connection, there being nothing on the face of 
the two summonses to show that both claims 
arose out of the same cause of action. I am of 
opinion that the Magistrate should not have 
npheld the exception, and I think it unfortunate 
that the defendant did not allow the case to be 
tried without raising the exception. The appeal 
must be allowed with costs. 
Mr. Justice Buchanan concurred. 
Mr. Justice Upington : I must refer again to 
what has taken place. In this case an applica- 
tion was made to me to interdict the defendant 
from realising his goods pending his giving 
McuTity for costs in the Magistrate's Court. 
Such security for costs in the Besident Magis- 
trate's Court oould not have amounted to more 
than about £10 at the outside. The next that 
is heard of the case is that £100 security for 
ooits is demanded from the defendant in Bast 
liondon, and application is made to the Court 
io attach his person beoaose he has not given 
£ 



security to the extent of £100— £100 security for 
costs in the Resident Magistrate's Court at 
Cape Town 1 I must say that I shall bear this 
in mind in the event of any future application 
with regard to costs. 

Mr. Molteno said that the security for £100 
included the amount claimed as damages in the 
summonses as well as the costs. 

[Appellant's Attorneys, Messrs. Fairbridge, 
Arderne & Lawton; Respondent's Attorney, 
John Ayliif.] 



KEBDBL V. BABC. 



f 1806. 

IFeb. 4th. 
Magistrate's juris'iiction - Set off or com- 

poKsation — Coanter-claim — Exception. 
In an action in a Magistrate'^ Court for £18y 
being for catsh advanced^ the defendant 
excepted to the jurisdiction on the ground 
that he had a counter-claim for £23^ but 
admitted that he owed the £18 to the plain- 

tiff. 

Held, th<U th: defendant's claim was reduced 
by his admission to £S and that, as this 
amount teas within the Magistrates juris- 
diction, he ought not to have allowed the 
exception. 

This was an appeal from a decision of 
the Assistant Resident Magistrate of Cape 
Town, in an action in which the 
present appellant (plaintiff in the Court 
below) sued the defendant (present re- 
spondent) for the sum of £18, cash paid and 
advanced by the plaintiff for the defendant at 
his special instance and request in the months 
of February, 1889, to March, 1890. 

The defendant excepted to the jurisdiction on 
the ground that he had a counter-claim of £23 
against the plaintiff. 

Evidence was then taken on the counter-claim, 
when the defendant admitted that he owed the 
plaintiff £18, but stated that the plaintiff owed 
him a balance of £5, which was all he claimed, 
that is, the difference between £23 and £18. 

The Court upheld the exception, and from that 
judgment the present appeal was brought. 

The Magistrate's reasons were as follows : In 
this case the plaintiff sues the defendant for the 
recovery of £18 advanced and paid by plaintiff 
at defendant's special instance and request. 
Defendant excepts to the jurisdiction of this 
Coirt on the ground that he (defendant) has a 
counter-claim of £23, which exceeds the juris- 
diction of this Court. The plaintiff denies the 
counter-claim. It seems clear that defendant 



^4 



■^* —- 



owes pUintiif £18 and that he (defendant) hag 
a hona-Jide counter-claim against plaintiff 
amoanting to £23 for money advanced. 

I am of opinion that a bono'fide counter- 
claim existfl which is beyond the jurisdiction 
of this Court, and that therefore the Court 
cannot adjudicate in this case without either 
giving judgment for an amount which prim-a 
ftieie has been extinguished in law, or deciding 
on a counter-claim which is beyond its juriedic^ 
tion. Brady v. Michiel (3 Juta, 178) ; Brett v. 
SoUnnon (4 Juta, 6). 

Mr. Graham was heard in support of the 
appeal and relied on Kru^er v. Van Vuuren's 
Egoeoutors (6 Juta, 162). 

The respondent did not appear. 

The appeal was allowed. 

The Chief Justice said : If the defendant had 
not admitted the plaintiff's claim the effect of 
his counter-claim would have been to demand 
from the plaintiff the sum of £23, which amount 
is in excess of the Magistrate's jurisdiction* 
By admitting the plaintiff's claim of £18 the 
defendant reduces his own claim to £5 only. 
That such a claim could be tried before the 
Magistrate is clear from the decision in Krvger 
V. Va/n Vuvreii's Execvtort (6 Juta, 162). But 
instead of claiming dS5 the defendant nominally 
claims £23 and then excepts to the jurisdiction 
of the Magistrate. None of the reported cases 
sanction such an exception and the appeal 
must be allowed with costs. 

i.AppeIlant's Attorney, D. Tennant, jun.] 



JflBLD AND CO. V. WBBNIKOFF. | pg^^^4|jh 

Civil imprisonment — Clerk — Magistrate's 

discretion. 

Where a Resident MagistrcUe^ in the exercise 
of his judicial discretion, hctd refused to 
grant a decree of civil imprisonment, in 
respect of an tmsatisfied judgment, 
agaitist a elerk employed in a chemist's shop 
at a salary barely sufficient to suppmi, him^ 

The Coart, on appeal, refused to reverse the 
Magistrate's decision. 



This was an appeal from a decision of the 
Resident Magistrate of Oudtshoom refusing a 
decree of civil imprisonment applied for by the 
present appellants against the respondent for 
non-payment of the sum of £162 18s. 6d., b^ing 
the amount of a judgment given against the 
defendant on 8th November, 1894. 

A writ of execution was issued, but the sum 
of £8 16s. was only realised under it. 



The facts appear sufficiently from the Magis- 
trate's reasons, which were as follows : 

The defendant is a clerk in a chemist's shop, 
and is wholly dependent on his salary. Plain- 
tilfs are merchants. One Perkins, a jeweller, 
obtained credit from plaintiffs on a promissory 
note made by him and defendant. The plain- 
tiffs were well aware of the defendant's position. 
Perkins absconded, and plaintiffs sued on the 
note. A writ was issued and defendant's 
effects were sold, but failed to realise the amount 
of the judgment. Plaintiffs then sued for civil 
imprisonment. The evidence satisfies me that 
defendant's circumstances did not admit of 
his paying anything further towards the liqui- 
dation of the claim. He has made three dis- 
tinct offers, which have been rejected, and the 
aid promised to him has been withdrawn. He 
had only his salary to depend upon, and it was 
a fair presumption that if sent to prison hia 
emplo} er would dispense with his services, and 
he would then be reduced to the position of a 
pauper. No evidence was tendered to contra- 
dict the defendant by showing that he had 
available assets which ho withheld, or that he 
had means other than his salary, 
which was precarious. The defendant's 
salary is, in my opinion, barely suffi- 
cient to maintain him in a respectable 
position, and any deductions therefrom over a 
lengthened period might have the effect of sub- 
jecting him to the temptation of dishonesty 
towards his employers. 

The plaintiffs are much to blame in having 
given credit to Perkins upon the security of 
defendant, whose position was well known to 
them. Their conduct appears to have been very 
reckless. I therefore adhere to the conclusion 
at which I arrived in this proceeding. 

From this judgment the present appeal was 
brought. 

Mr. Juta, Q.C., was heard in support of the 
appeal, and contended that the Magistrate had 
not exercised a judicial discretion in refusing 
the decree. 

Mr. Tredgold, for the respondent, was not 
called on. 

The Court dismissed the appeal. 

The Chief Justice said : It is not necessary to 
hear Mr. Tredgold. The question is whether 
the Magistrate has exercised his discretion bo 
unwisely and injudiciously that the Court 
should reverse his decision. That a wide dia- 
cretion is left to the magistrate is clear from the 
Act of 1866, as well as that of 1879. If it ia 
proved to the satisfaction of the magistrate that 
the defendant has no property or means, he ia 
justified in refusing to make an order. In the 
present case it has been so proved to the aatia- 



27 



faetion of the Magistrate. Mr. Jata oontends 
that his discretion has not ))een judicially 
exercised ; well, I think that is carrying the 
argument rather far. The defendant's income 
is £10 per month ; his employers take £1 lOs. ; 
his board, lodging, and extras amount to £6 Ss., 
and the balance does not leare him much 
for clothing and other necessaries. Under 
all the circumstances, I think the Magis- 
trate acted quite judicially in refusing an order. 
If the man hereafter acquires property, it will 
be quite competent for the plaintiifi to apply 
asain to the Magistrate, but at present I do not 
think the Court ought to grant an order, and 
the appeal must be dismissed with costs. 

Their lordships concurred. 

[Appellants' Attorneys, Messrs. Falrbridge, 
Ardeme & Lawton; Bespondent*s Attorneys, 
Messrs. Tredgold, Mclntyre & Bissei] 



JOICBB y. TOWN COUNCIL OF CAPE 

TOWN. 



I 



1895. 
Feb. 4th. 
6th. 



tf 



Prescription — Town Council — ^Public road — 
Inalienable land — Consent of Governor— 
Public pqaare. 

Prettcription runs a* against the Toirti Covncil 
in respect of land forming part of a public 
square^ such land being alienable with the 
consent of the Governor, 



This was an argument on two exceptions 

aken to the plaintiff's declaration. 
The declaration alleged that the plaintiff Is 

he registered owner of a certain piece of land, 
with buildings thereon, situated at the comer 
of Grave-street and Church-square, Cape Town, 
being part of lot 2, block K, and being 10 

qoare roods and 62 square f«et in extent. 
The title to the land immediately adjoining 

he limits of the said property so registered in 

laintiff's name on the Church-square side of 
'he said property is vested in the defendant 
Council, and has heen vested in it and its pre- 
dece»iors in title pinoe the year 1828 and for a 
longer period prior thereto. 

For a period far longer than the period of 
prescription the plaintiff and his predecessors 
in title have uninterruptedly and as of right 
occupied and built upon a strip of ground adia- 
cent to the limits of his said registered 
property and facing Church-square. The said 

ieoe of ground is 60 feet in length along the 
Church-square frontage, and is 10 feet broad, it 
forms portion of the land of which title is vested 
in the defendant Council as aforesaid ; and 
portion of ^ bnildinip in the occupation of, and 



belonging to, the plaintiff stands upon it, and 
has so stood for a period far longer than the 
period of prescription. 

The plaintiff attaches thereto a plan showing 
the plaintiff's registered property , and showing the 
position and extent of the strip of giound afore- 
said. The property registered in the name of 
the plaintiff is marked " A," and the strip of 
ground hereinbefore mentioned is marked " B " 
on the said plan. 

By reason of the matters hereinbefore stated, 
the plaintiff has acquired by prescription the 
ownership of the strip of ground aforesaid, and 
he is entitled to claim transfer from the 
defendant Council of the said strip into his own 
name. 

The plaintiff has always been, and is now, 
ready and willing to do all things necessary on 
his part to effect such transfer, and hereby offers 
and tenders to pay all costs and expenses law- 
fully necessary in connection with the said 
transfer. 

The defendant Council maintains that the 
plaintiff is not the legal owner of the said strip 
of ground, and is not entitled to claim transfer 
as aforesaid, but it claims that it is entitled to 
the ownership of the ground, and refuses to pass 
transfer thereof to the plaintiff. 
The plaintiff claimed : 

(a) An order declaring that the ownership of 
the said strip o^ ground marked ** B " in the 
plan annexed is vested in him. and that he is 
entitled to transfer thereof. 

(jh) An order ootupelling the defendant 
Council to do all things on its part which are 
necessary to effect transfer of the said ground 
to the plaintiff, he tendering as aforesaid to pay 
all costs of transfer. 

(jo) Such other relief as to the Honourable 
Court may seem meet. 
ijd) Costs of suit. 

To this declaration the Council took the 
following exceptions : 

1. The defendant Council and every pre- 
decessor of the defe::dant Council in office as 
the Municipal governing body or the Corpora- 
tion of the City of Cape Town, is and has at all 
times been debarred by law and precluded from 
alienating land vested in the defendant 
Council, and in such predecessors for 
public Municipal purposes by reason 
whereof private ownership by virtue of long 
adverse occupation or use, commonly called 
ownership by prescription, cannot lawfully be 
claimed to have been acquired by the plaintiff 
or his predecessors in title in respect of the 
strip of land now in suit, even if the allega- 
tions of facts in the declaration b? true, 



28 



Wherefore the defendant prays that the 
declaration may be set aside with costs. 

2. Should the above exception be overruled, 
but not otherwise, the defendant Council further 
says that the plaintiff 's declaration is bad in law, 
in that the plaintiff claims to be declared 
entitled, as against the defendant Council, to 
transfer of the said strip of land marked "B," 
and to an order in terms of the prayer marked 
(h) in the plaintiff's declaration, by reason that 
the defendant Council is by law not- empowered 
to pass transfer to the plaintiff of the said land, 
for any alienation or transfer whereof the con- 
sent of His Excellency the Governor is by law 
required, which consent is not in the declaration 
alleged to have oeen given. 

Wherefore the defendant again prays that the 
declaration may be set aside with costs. 

Mr. Searle, Q.C. (with him Mr. Graham), was 
heard in support of (he exceptions and relied on 
the following authorities : Latsky v. Surveyor- 
General ( Buch. 77. p. 68) -, Rossmnv v. Bnrgers 
and Otheri (1 Juta, 119); Matthwas, Paroem, 9 
tilto', Voet (41, 3, 12), (44, 3, 11), (1, 8, 9, 10); 
Grotiv4 (Maasdorp's Translation), p. 66 ; Digest 
(43, U, 2) ; Surge (Vol. III. 18, 19) ; Hunter 167 
—MaUhoBU^ de Anetion (2, 7, 46, 46, 47) ; S<mth 
African Association v. Van Staden (9 Juta, 96) ; 
Cape Town and District Watei'worhs Com-pariy 
V, Executors of Elders (8 Juta, 9). 

Mr. Rose-lnnes, Q.C. (with him Mr. Jones), 
cited the following authorities: J/vnIeipality 
of Frenchhoek v. Ilvgo (2 Juta, 248); tSchvofy, 
Weyer (6 K.D.C., 33) ; 7hfvn Council v. Mossop 
(3()th August, 188n): Mayor of Brighton v. 
(rvardians of the Pom' of Brighton (5 CP.D., 
3t>8); Blanchenberg v. CoUmial (rorernment (4 
Sheil. 61). 

Mr. Searle, Q.C, in reply. 

Ciiriu ad vult. 

Postea (February 6) 

The Court delivered judgment. 

The Chief Justice said : The plaintiff in this 
action claims an order declaring that the owner- 
ship of a stoep adjoining his house in Church- 
square, Cape Town, is vested in him by prescrip- 
tion, and an order compelling the Town Council 
to do what is necessary to effect transfer in his 
favour. The defendant Council excepts to the 
action on the ground that the land on which 
the stoep stands was incapable of being 
acquired by prescription because it cannot be 
alienated by the Council, and on the further 
ground that if the land can be alienated at all, 
it can only be done with the consent of the 
Governor, which consent is not in the declara- 
tion alleged to have been given. In the course of 
the arguments the question has been much dis* 
cuos^d whet^her t^e Ifind in question 1>elongs t9 



the Crown or to the Town Council. No grant of 
the land appears ever to have been made 
to the Council, but, strangely enough, 
the al)8ence of such a grant has not 
hitherto stood in the way of transfers being 
effected by the Town Council of waste lands 
sold by it with the consent of the Governor. 
The inconvenience of such a practice was 
forcibly pointed out by the learned Registrar of 
this Court in his Parliamentary Report for the 
year 1893, when he held the office of Registrar 
of Deeds, but no steps have yet been taken to 
remedy the inconvenience. In the view which 
I take of the case it is immaterial whether the 
title to the land is still in the Crown or in the 
Council. It is admitted that the Council has 
had the control of the square so long as the 
square has been in existence as such. The 
Council has, therefore, properly been made a 
defendant in the action, by which title by 
prescription in a small portion of the square has 
been claimed, and no objection has been raised 
that the Government ought to have been joined 
as co-defendant«. The only two objections are 
that the land is inalienable, and therefore 
incapable of being acquired by prescription, 
and that the consent of the Government 
is not alleged. None of the Statutes 
which have been cited support the proposition 
that the land was inalienable. Under De Mist's 
Instructions to the Burgher Senate, cs well as 
under the later Statutes, the land could Ue 
alienated with the approval of the Governor. 
The defendant's counsel wos therefore obliged 
to fall back upon the common law in support of 
the first exception. It was not denied that bo 
far as the rights of the Crown wore concerned 
prescription would run in respect of land 
capable of alienation by (he Crown. This point 
was expressly decided in Municipality of Er&neh- 
hoek V. Hvgo (2 Juta, 230) on the authority of 
Voet (44, 3, II) and the decision was upheld on 
appeal to the Privy Council (3 Juta, 346). But 
reliance was placed upon a remark made by 
Voet in the same passage to the effect ttiat 
prescription does not run in respect of things 
merae faoultati-s. It was contended that the 
stoep was originally built upon a part of the 
public square, and therefore of a public road, 
and that the public cannot be deprived by pre- 
scription of its right to exercise it« facuUas, 
It is clear, however, from the reference made by 
Voet io the Digest (43, 11, 2), that this is not 
what he means. Viam jmblicain popalns non 
utendo a mittere non potest. The public cannot 
by non-user lose its right to a public road. It does 
not follow that the right may not be loat by 
adverse u»er. In another passage, which was 
|iot cited on either side, ^<w^ (IS, 7, 7) discusF^ 



» 



tUiTenr qnestiovi mt len^h. He there points 

«t thai the rule in tlie JJigest only applies 

vhere no act has intervened by which the use 

ofthi road hme been prervented, '' for/' adds he, 

"ii tny one has used a public road as if the 

propnty were hia o'wn. and has built, sown, 

pbnied, dnf^ cm it or placed fences thereon, or 

in iny other manner has prevented the public 

fnMnfoing over it for a period of forty years 

•iUMNit any objection or vindication of its 

rightionihe part of the public, no one would, 

in my opinion, doubt tbat in such a case the 

public will have loet the nae of that public 

road by pTeecription, since nu right, private 

or pnbUe, on aoeonnt of whatsoever cause or 

petion, which has been extinguished by a 

eontinued silence of forty years can afterwards 

be wt up." 

In the case of Toirn, ComhcU v. Jfatsop (80th 
August 18130) it was taken for granted that 
prescription runa against the Town Council 
of Cape Town in respect of land built upon by 
the owner of adjoining property and this view 
has never since been questioned. 

In the present case the declaration alleges 
that ** for a period far longer than the period 
of preKription the plaintiff and his predecessors 
in title have uninterruptedly and as of right 
Gceapied and bnilt upon ** the strip of land in 
question, and if that allegation is proved the 
plaintilf will be entitled to succeed. As to tbe 
exception that the declaration does not allege 
tbe Governor's consent to the alienation of the 
strip of land, I do not find that any such alle- 
gation was made in MoMop^tt Ca*e. The object 
of tbe law in allowing a title to be acquired by 
prescription is to protect persons in the possession 
of land which they have for the required period 
oceopied nee ri nee clam nee preeario, and no 
anthority has been cited for withholding this 
protection in the case of land which can only 
be alienated with tbe consent of a third person. 
Such public domains as are inalienable caunot 
be aoqolred by prescription, but land which is 
capable of alienation, although subject to the 
consent of a person or corporatiou other than 
the owner, may be so acquired, provided only the 
adverse occupation has been peaceful, open and 
as of right. The Court has frequently decided 
that where land has been acquired by prescrip- 
tioD the registered owner may be compelled to 
do what \b in his power to do without any 
expeniie to himself in order to complete the 
occupier's title in compliance with the registra- 
tion laws of the Colony. In the present case the 
declaration claims an order declaring that the 
plaintiff has become the owner of the land in 
question, and to that extent at all events, if all 
fbe allegations of the declaration can be proved, 



the declaration is unexceptionable. The further 
claims are of lees importance, and even if they 
should not be sustained their insertion would 
not, according to the practice of this Court, be a 
ground for setting aside the whole of tbe 
declaration. The exceptions must therefore be 
disallowed with costs. 

Their lordships concurred. 

[Plaintiff's Attorneys, Messrs. Bcanlen Sc 
Byfret; Defendants' Attorneys, Messrs. Fair- 
bridge, Arderne •$: Law ton.] 

STOFlfELB V. MILLB AND RETHMAN f I81»5. 

V LIMITED). ( Feb. 6th. 

Summons — Exception — Plaintiffs' ri^jht to 

sue — Limited company — Authority. 
A Ui rector and the Hecrctary of a limited com- 
pani/ {HMued a sunimtms claiming an amount 
dntfor goods nold a fid de.lirered to the 
defendant. 
The Hummoiu alleged inter alia that the 
plaintiffs trere the Joint managern of the 
bwtineHM afid lare duly authorined to collect 
and Hu? for all accountH owing to the firm. 
The defendant excepted to the Hummons on the^ 
ground that it did not allege' in what manner 
the plaintiffs hud been authm'ised to sue 
whether un ler tlie ar tic lei of asfiociation^ the 
truHt deed J by re^olut'ou of sharcholdent^ by 
powr of attorney, or tttht-rwisp. 
The Magistrate^ before whom the case came, 

orer ruled this exception. 
Held on appeal, uphol ling fh" A f,t gist rate's 
dertsio/ij that the exception was Inidy as 
there was a definite allegation in the 
summons that the plaintiffs wfre. authorised 
tosuSy iio attempt ha ring been made by the 
defendant to disprove that allegatiim. 



This was an appeal from a decision of the 
Resident Magistrate of Umsikata, Pondoland, 
in an action in which the present respondents 
(plaintiffs in the Court below) sued the appel- 
lant (defendant) for the sum of £1,296 78. 

The defendant was sum ni coed to answer the 
managers of the firm of Mills k Kethman 
(Limited), a limited liability company carrying 
on a general mercantile and trading business in 
Pondoland, Cape Colony, and elsewhere. 

The summons went on to allege that John 
Frederick Eethmau is a director and Francis 
Walton is the secretary, and as snch are the 
joint managers of the business in Pondoland 
aforesaid, and are duly authorised to transact 



30 



all l)UBineB9, collect and sue for all acoountB and 
debts owing to the said firm. That one Geoif^e 
StofEelB (the abovenamed defendant) is a trader, 
and did on divers occapions, namely, between 
the 3lBt December. 1891. and 26th August 1894, 
transact businers with the said firm and buy 
from and sell to the said firm such articles as 
appertain to a general trader*s business, as will 
more fully appear on reference to the account 
herewith annexed, marlted "A," which plain- 
tifEs pray may be considered as inserted herein. 

That the said account i^hows that there is a 
sum of £1,296 7s. due by defendant to plaintifis 
in their aforesaid capacity, and which the de- 
fendant neglects and refuses to pay, though fre- 
quently requested po to do. 

Wherefore the plaintiffs pray that the defen- 
dant maybe condemned by this Court to forth- 
with pay the said amount to the said firm of 
Mills & Rethman, together with such interest as 
may be found due thereon, and the coits and 
expenses of this suit. 

Mr. Zieteman appeared for the plaintiff. 

Mr. Jones for the defendant. 

Mr. Jones before pleading wishes security for 
costs. 

Mr. Zietsman is prepared to admit anything 
that may be put to Mr. Walton, whom Mr. 
Jones wishes to put in the box. 

Mr. Jones : Do you admit that Mills & 
Rethman are a limited liability company ? 

Mr. Zietsman : Yes. 

Mr. Jones cites sections 128 and 126, sub- 
section 4, of the Companies Act, 1892, on the 
question of recurity for costs. 

Mr. Zietsman replies, and points out that 
there are sufficient assets of the company within 
the jurisdiction of the Court to cover any costs, 
and further, that this Act does not apply to 
Pondoland, having never been extended. 

The Court is satisfied that there is no danger 
of costs not being paid, and that the plaintiffs 
have assets sufticient to cover such costs within 
the jurisdiction. 

The defendant's attorney then handed in the 
foUowiDg exceptions : 

1. That the issue of the summons by the clerk 
of the Court was irregular and illegal, inasmuch 
as at the time of such issue he failed to satisfy 
himself that John Frederick Rethman and 
Francis Walton, who institute this action on 
behalf of the plaintiff finn, had the legal right so 
to act. 

2. That the summons does not allege in what 
way the said John Frederick Rethman and 
Francis Walton acquired their alleged right to 
sue on behalf of the plaintiff firm, whether under 
articles of association, trust deed, resolution of 
shareholders, power of attorney, or otherwise. 



3. That the plaintiff firm is not a limited 
liability company according to the law of this 
colony, wherefore defendant claims that the 
summons Is irregular and incomplete, inasmuch 
as the same does not disclose the names of all 
the partners or shareholders constituting the 
said firm, all of whom should be joined as 
plaintiffs in this action. 

4. That the account annexed to the summoiiB 
does not, as alleged in sections 3 and 4, show the 
sum of £1,296 7s. as being due by the defendant ; 
but on the other hand it is shown in the aocount 
referred to that the business transactions said 
to have taken place between the diet December. 
1891, and 28th August, 1894, leave a balance of 
£315 2s. 6d. due by the plaintiff firm to the 
defendant. 

5. That the account annexed to the summons 
is vague and incomplete, inasmuch as it does 
not as by law required give details or par- 
ticulars of any goods said to have been Fold to 
defendant, and that such items as the following 
(here certain items were specified) and many 
others of a similar nature are without further 
particulars quite unintelligible, wherefore de- 
fendant is unable to check the account, and is 
thereby prejudiced in his defence. 

The plaintiffis' attorney admitted that no 
articles of association were exhibited to the 
clerk of the Court at the time of the issue of 
summons or since. 

The Resident Magistrate overruled the excep- 
tions, and from that decision the defendant now 
appealed. 

Mr. Graham was heard in support of the 
appeal. 

Mr. Rose-Innes, Q.C., for the respondents. 

The appeal was dismissed with costs. 

The Chief Justice said: I have alreadv 
remarked that there is no appeal on the ques- 
tion of security. The appeal noted by the 
defendant's agent in the Court below was simply 
against the Magistrate's overruling the excep- 
tions. As to those exceptions, the fourth and 
fifth are clearly exceptions on the merits, and 
the only exception that can be taken into 
account is the one in which objection is raised 
against Rethman and Walton suing as managers 
on behalf of the company. Now, this exception 
must be considered with regard to the summons 
as it stands, and if, upon the face of the sum- 
mons, there is sufficient proof of authority to the 
plaintiffs to sue on behalf of the company, then 
the exception was a bad one. The summons 
commands the defendant to answer the 
managers of the firm of Mills & Rethman. and 
tho second paragraph of the summons alleges 
that the said John Frederick Rethman is a 
direc^r upd Francis Walfon ^e secretary, and 



31 



as luch the joint managen of the aaidbiuiness in 
Pondoland, and are duly authorised to collect or 
sue for all accounts. There is a definite allega- 
tion that they are persons authorised to sue, 
and if they fail to prove it in the action, then 
the Magistrate will give absolution. Instead of 
attempting to disproTe it, the defendant took 
the exceptions. Well, the Magistrate was quite 
right in overruling the exceptions. At the same 
time I may make this remark, that I advise the 
plaintiffs to be prepared, when the case comes 
before the Magistrate to be decided on the meritu, 
with awarrant from the chairman of the company, 
aod if any objeotionis then raised, an amendment 
may be made : but even without any objection, 
I should think it would be far better, before the 
case goes to trial, to make the amendment. On 
the summons as it stands, there is no ground for 
the exceptions, and the appeal must therefore be 
dismissed with costs. 

Their lordships concurred. 

[Appellant*s Attorneys, Messrs. Fairbridge, 
Ardme k. Lawton; Respondents' Attorneys, 
Messrs^ Van Zyl & Buissinntf.] 



WALDKB V. KBTNAUW. { peb^^6th. 

Shares — Alleged sale — Conflict of evidence — 
Credibility — Character of witue^se:'. 



This was an action instituted by the plaintiff 
igalnst the defendant for delivery of ten shares 
in the Paarl Fire Insunmce and Trust Company, 
or for £100 damages for non-delivery. 

The declaration alleged that on the S8rd 
November, 189i, the defendant sold to the plain- 
tiff, and the latter purchased from the defendant 
ten shares in the Paarl Fire Insurance and 
Trust Company at £6 per share. 

That the plaintiff offered to pay the price of 
the shares, £00, but that the defendant failed to 
deliver them. 

The plamtiff claimed : 

(a) Delivery of the ten shares (he tendering 
the purchase price, £60), or in the alternative 
£100 damages for non-delivery. 

{.h) General relief and costs. 

The defendant in his plea admitted the tender 
of £60, but denied that any contract of sale had 
been concluded between the parties. 

The replication joined issue. 

Mr. Bearle, Q.C., and Mr. Buchanan appeared 
for the plaintiff. 

Mr. Tredgold for the defendant. 

Ferdinand Walder, the plaintiff, deposed 
that he resided at the PaarL The defendant 
lived on a farm about one and a half hours* from 
the Paaii Witness's eon, Ferdinand, carried 



on business as a butcher at the Paarl. On 
the 23rd November last, after nine o'clock in 
the morning, the defendant came to his son's 
shop. Witness, his son, and defendant were 
then together. Defendant told witness that he 
(defendant) knew he had shares in the Paarl F. 
I. k T. Company, and that he (defendant) also had 
shares in the company. They had a talk about 
signing for a continuance of the company, which 
had run out in terms of the trust deed. Witness 
thought it expired on the 1st October. The 
directors were canvassing for signatures for 
continuing the company. Defendant said he 
would not sign, saying he would rather sell his 
shares. Witness asked him then how many 
shares he had, and he answered ten, and that he 
would sell the ten for £60. They were £10 
shares, but only £3 lOs. was paid up. The offer 
was accepted, and defendant said he would 
bring the shares next time he came. Subse- 
quently he saw defendant many times in the 
village, but defendant always avoided 
him, and never brought the shares. 
On the 29th November he caused Mr. 
Marais, his agent, to write to defendant 
demanding the delivery of the shares. He re- 
ceived no answer to the letter. Witness had 
twenty shares in the company and had been 
recently offered £14 per share. The price of 
the shares on the 23rd November was indefinite, 
but witness knew they were worth a little more 
than the price agreed upon. Shortly after the 
conversation at which the sale took place he 
saw one Hofme3rr and also a Mr. De Villiers, 
secretary to the Paarl F. I. U T. Company, 
and learned from them that the defendant had 
sold his shares to the company for £66. 

Cross-examined by Mr. Tredgold : At present 
witness was an unrehabilltated insolvent. Had 
the money by him at the time to pay for the 
shares. Did not offer the money to defendant 
on the spot^ Defendant simply came to his 
son's shop to buy some meat. Defendant said 
he was tired of the shares, and in reply to wit- 
ness's question said he woald take £60 for the 
ten. Defendant did not say he would have to 
consult his wife. Sold ten of his shares in 1894 
for £46. Told Hofmeyr that he would sell all his 
shares in the company for £1,000. This would 
be for fifty shares. His object in wishing to 
acquire shares was to force the company to buy 
him out. Witness refused to sign for the com- 
pany. 

Counsel here produced books in connection 
with witness's insolvency. 

Cross-examination continued : Was not aware 
that the entries purporting to have been made 
by witness in 1879 were made in a book that 
was not published till 1882. When the same 



3S 



question was Dut to him at the meeting of his 
creditors witness was silent. Was examined 
before Mr. Dreyer, Assistant Resident Magis- 
trate. He copied the entries out of an older 
book into that book— but he did not say that 
before the Magistrate. He did not want to have 
anything more to do with that affair. 
Atter the examination before his creditors 
witness's son made a compromise, and the 
inquiry was not continued. Witness would 
not now sign for the continuance of the com- 
pany, but he would not say what he would 
sell his shares for. Mr. Moll had offered 
him £14 each for them a week ago. The 
company wanted to buy the shares for the pur- 
pose of continuing it, and were prepared to pay 
a little more for the shares on that account. 
The company was an unlimited liability one, 
and the unanimous consent of the shareholders 
had to be obtained for continuing it. Witness, 
as an insolvent, could not register the shares in 
his name. 

Re-examined: Witness became insolvent in 
the beginning of 1890. Then held forty-five 
shares in the Paarl Bank, which was in liquida- 
tion, on which there was a call of £250 per share. 
Had no other liabilities. Owed nothing except to 
the Paarl Bank. Gave the shares in the Paarl 
F. I. Sc T. Company into the estate, and there was 
a compromise, and he got the shares back again. 
His estate was not released from sequestration on 
the compromise. The compromise was that he 
paid £800 to the Paarl Bank, and also some 
interests in certain shares. When he offered 
Hofmeyr his shares for £1,00 J, he did not in- 
clude the shares which he had just bought from 
defendant. 

Mr. Justice Buchanan : He would hold 
those BO as to force the company a second time. 

Re-examination continued : Gave up his 
butcher's business to his son in November, 1890. 
At that time there was a run on the Paarl Bank. 
No steps were ever taken against him in respect 
of his insolvency. The shares had been gradu- 
ally rising in price since the difficulty arose 
about continuing the company. 

By the Court : Heard two days after the sale 
that defendant had sold his ten shares far £66. 
Paid about £900 to the Paarl Bank as the com- 
promise. 

Ferdinand Walder, jun., son of the last wit- 
ness, gave similar evidence regarding the con- 
versation when the sale took place. There would 
have been no difficulty in finding the money to 
pay for the shares on delivery. Was present at 
the conversation between his father and Mr. 
Hofmeyr. Hofmeyr came about signing for the 
continuation of the company, and his father 
fald he would see about it. and that he had 



bought another ten shares from defendant. 
When the compromise was made, Mr. De Vil- 
liers promised his father his rehabilitation, but 
that bad not been done. His father did not pay 
the compromise with his children's money. HIb 
father's evidence at the creditors' examination 
was not correct in that respect. 

The Chief Justice said that the plaintiff in 
his evidence at that examination said the com- 
promise was paid with his children's money. 

Cross-examined : Was thirty-two years of 
age. His father did not tell Hofmeyr that if he 
sold his own shares for the £1,000 he would let 
the ten shares he had bought from defendant go. 
Witness could not remember anything about 
false entries in the books disclosed at his father's 
examination in in^iolvency. After the compro- 
mise witness destroyed the books. Heard two 
days after the sale of the shares that defendant 
had sold the shares to Mr. De Villiers for £66. 

Re-examined: His father told Hofmeyr he 
had bought the ten shares from defendant. 
Witness had to assist in his father's compromise. 
Witness took over his father's business about 
three months before the Paarl Bank smashed. 

The Chief Justice : It was at the very time 
that the Paarl Bank smashed. 

This closed the case for. the plaintiff. 

Mr. Tredgold applied for absolution from the 
instance, which the Court refused. 

David Anthony Krynauw, the defendant, 
said that when plaintiff offered him the £60 for 
the shares he replied that he could not sell or 
say anything on that day, and nothing further 
transpired. He did not want to sell the shares 
to anybody but the Board itself, and he sold 
them two or three days afterwards to the Board 
for £66. Had heard from people that the 
plaintiff, when he became insolvent, made 
everything over to his son. 

Cross-examined by Mr. Searle : Did not think 
that plaintiff might notl>e able to pay for the 
shares. Told plaintiff he was troubled with the 
shares, and then plaintiff said he would buy 
them. Did not tell plaintiff he wanted to get 
rid of the shares. 

The Chief Justice said that the witness did 
not wish to sell his shares to any1x)dy but the 
company itself, because he was afraid, the 
company being an unlimit-ed one, his estate 
might be held liable if he sold to anyone 
outside. 

Cross-examination continued : Got the letter 
of demand on the 2nd December, but did not 
reply because he had not sold the shares to 
plaintiff. Had never been near W alder's shop 
since, although previously he used to purchase 
meat there. On the 28th November he brough 
his shares to town, because lus irife told him ^e 



^3 



oould sell them to Mr. De Villiers. Neither the 
plaintiff nor his son had asked him to bring in 
the shares. Sold the shares to De Villiers for 
£66. 

John Hendrick Hofmeyr, clerk to Mr. De 
Villiers (secretary to the company), said that he 
went to the plaintiff on the 2^d November, 
between ten and eleven a.m., and asked him to 
sign for the continuation of the company. Just 
as witness walked into the butcher's shop, 
defendant came out of it. Plaintiff refused to 
sign, and said he wanted £1,000 for his fifty 
shares. Told witneiis that he had bought another 
ten shares from defendant for £60, but that he 
would not insist upon that^ Saw defendant 
again the same afternoon, and defendant dis- 
tinctly said he had not sold the shares to plain- 
tiff. Saw defendant again on the 28th November, 
when he sold the ten shares to witness for Mr. 
De ViUiers for £66. 

Cross-examined: The company was anxious 
to get hold of the shares of the people who would 
not sign. The cheque to pay for the ten shares 
was on from Mr. De Villiers* private funds. 

Mr. Searle said he believed that the transac- 
tion was a private one of Mr. De Villiers', and 
that he, not the company, bought the shares. 

Witness, continuing, said he did not 
ask plaintiff why, as he was asking £1,000 
for fifty shares ; he would not insist on 
the bargain he had made with defendant at £6 
per share. Did not know at what price the 
shares had been on offer at the Paarl. 

The Chief Justice : Oh, it is of no use trying 
to extract anything out of this witness. 

Jacob Isaac de Villiers, secretary to the com- 
pany, deposed that the only way of continuing 
it was by getting shareholders to sign their con- 
flont, A few shareholders refused to sign, 
amongst them the plaintiff. On the 22nd 
November defendant had a conversation with 
witness, and said he would see his wife about 
Belling the shares or signing. Subsequently he 
was surprised to hear a report that defendant 
had sold the shares to the plaintiff, and could not 
believe that defendant would play him so false. 
If the company was judiciously liquidated the 
ehares would be worth three or four times as 
much as the amount paid upon them. It had 
now been decided to liquidate. Some shares 
were Bold recently at about £10, but in Novem- 
ber £66 for ten shares would be the 
market price ; the market price was then about 
£5. Did not know how long the liquidation 
would take, but eventually the shares would 
torn out very valuable. In connection with 
plaintiff's insolvency, he knew that there were 
diicrepancies in the books. 



Cross-examined : The Paarl Bank thought it 
judicious to accept plaintiff's compromise. No 
criminal proceedings were taken against the 
plaintiff. He was the trustee in the estate, and 
people could draw their own conclusions as to 
whether plaintiff had made himself liable to 
a criminal prosecution or not. The shares might 
turn out to be worth £20 or £26. Would be glad 
to get all the shares he could at £12 to £14. 
About a week ago the shareholders who would 
not sign, including the plaintiff, offered to sell 
their shares for £16, but the Board refused to 
take them on principle. Saw the defendant on 
the morning of the 22nd November, unless 
witness was much mistaken. 

The Chief Justice: ihe defendant said that 
he did not see either Mr. Hof meyr or Mr. De 
Villiers before seeing the plaintiff that day. 

The plaintiff (recalled) deposed that he went 
back to the Paarl on the very same day that he 
gave his evidence in the case of Falconer v. 
Walder in the Supreme Court. He went home 
by the night train. Knew that the judgment in 
the case was given the day after he gave his 
evidence, and was present in court when judg* 
ment was delivered. 

The defendant (recalled) said that before he 
went to the butcher's shop, when the alleged 
sale took place, ho saw Mr. Hof meyr. 
Mr. Searle was heard for the plaintiff. 
Without calling on Mr. Tredgold, the Court 
granted absolution from the instance with costs* 
The Chief Justice said: Mr. Searle very 
correctly stated that by our law a contract of 
this nature is not required to be in writing, and 
that it may be proved by oral evidence ; but it 
is clear'.that the burthen of proving the contract 
lies upon the plaintiff. He must satisfy the 
Court that the contract of sale was made and 
understood by the defendant as well as by him- 
self at the time. Now it is quite clear from the 
evideuce that— whether the contract was made 
on the 22nd or 23rd of November — at the time 
when it is said to have been made the plaintiff 
was very anxious to buy these shares, and it is 
by no means clear that the defendant was 
equally anxious to sell; and according to the 
plaintiff's own account he somewhat rushed the 
ignorant farmer, who came to bis shop not 
for the purpose of dealing in shares but 
in order to buy beef. In the course of 
conversation with this ill-informed old man, 
something came out about the company being 
wound up, and the old man said, " It is snch a 
bother about these dividends. I want my 
dividends and I would like to sell my shares." 
At once the plaintiff snaps it up. The defendant 
said he would never sign, but would rather sell 
and be rid of the shares. The plaintiff theq 



u 



said, "I asked him how many ehareB have 
you?" "Ten/* **What do yon want for 
them ? " He said, " £60 ; I think £3 10b. have 
been paid up on each share." I said, " If that 
is so, I will take them at £60.*' It shows his 
eagerness to take the old man at hia word sud- 
denly and to bind him down to the bargain there 
and then. The old man says nothing of the 
kind took place, but the son corroborates the 
plaintifL It 1% however, difficult here to see 
where the father ends and the son begins. I 
think it is one of those cases in which it is im- 
possible to lose sight of character. The old man, 
the defendant, comes to the Court with a stain- 
less character. He has never been insolvent or 
in the law court. Mr. Walder seems to know 
the inside of the Oourt very well ; on the very 
day before this transaction he was engaged in a 
case before the Court in which it appears that 
he, who had been insolvent in 1890, actually 
entered into a transaction by which he was to 
buy property worth £6,000 or £6,000. Well, if 
one reads his evidence before the commission on 
his insolvency one cannot lose sight of character. 
That evidence shows that the insolvency was one 
of those too frequent in the Colony where ad- 
vantage is taken of creditors in a most dis- 
graceful manner. He took steps to dispose of his 
assets when the Paarl Bank went into liquidation 
and assigns £1,200 to his son, for what— for 
salary I His son had been in the business for years 
and had drawn benefits from it» and then the 
plaintiff hands over the business and £1,200 to 
his son so as to deprive his creditors of the assets. 
Fortunately, afterwards a compromise was made 
and something came out of the estate ; but how 
the amount of the compromise was paid is not 
quite clear. The question of character must 
come in when it is a matter of 
oath against oath. I was not very pleased 
with the manner in which the defendant him- 
self gave his evidence, because he forgot some 
tsircnmstancee which Mr. De Villiers and Mr. 
Hofmeyr recollected, but at the same time be- 
cause he was at fault on a few minor points 
thai does not affect his evidence as to the main 
issue, whether there was a contract or not. It 
seems so unlikely that he would, a few days 
after selling the shares to the plaintiff^ sell them 
again for a profit of £6, if he had really sold 
them to the plaintiff. But even if he did so, the 
plaintiff has himself to blame if he cannot now 
enforce the law, as he might at the time have 
drawn up a written document and induced this 
old man to sign it In the absence of such a written 
contract there must be clear evidence, and in 
Iha absence of such clear evidence he is not 
entitled to succeed in this action. The Court 
iherafore grants abstrfution from the instance 
with costs. 



Mr. Tredgtdd applied for defendant's wit- 
nesses* expenses, which were granted. 

[Plaintiff's Attorney, Gus TroUip; Defen- 
dant's Attorney, C. C. de Villiers. | 



SUPREME COURT. 



{.Before Mr. Justice Boohanak and Mr. Justiee 
Upinoton, K.C.M.G.] 



RBHABILITATIOK. 



3 1896. 
? Feb. 7th. 

Mr. McLachlan applied for the rehabilit«- 
tion of Philip RosenthaL 
Granted. 



JONBS V. VIGKBB8' TBUHTKB {peb^^'th 

Costs. 

Wht^re an ex parte application was mnde for 
an order compelling tJu trustee in aat insol- 
vent e$taU to file a cmUribution account the 
maUer v)as ordered to stand over so that 
notice might be given lo th^ trustee. 

Afterwards the Court reused the application 
with costs, as it appea ed that the account had 
been filed the day before the originaX appli- 
cation uku set down for hearitig. 



This was an application on notice to the 
respondent that he would be required to show 
cause why he should not be ordered, as trustee 
of the insolvent estate of John Vickers, to 
frame an account of contribution amongst the 
creditors of the insolvent estate for the payment 
of the judgment and costs obtained by the 
applicant against the said insolvent estate, or 
otherwise to get in and collect from the credi- 
tors in the said estate the amount of the said 
judgment and costs, and why he should not pt^y 
the costs of this application de honU proprii*. 

The applicant obtained judgment for £8 and 
£33 9s. 4d. costs against the respondent In his 
capacity in the Periodical Cotirt at Lady Qrey 
on 19th July, 1394. 

On 28th August, 18(H, the applicant issued a 
writ to which there was a return of nuUa hona. 
On 7th Kovembor, 1894, the applicant throngh 
his attorney wrote to the respondent calling 
upon him to frame a contribution aooouiit« 



85 



To thiB letter no roplj wai received. On 4th 
December, 189i, the applicant again wrote to 
the respondent telling him that unless he heard 
from him on that day that the necessary steps 
had been taken to frame a contribution account 
he (applicant) intended to proceed against him 
forthwith. 

The applicant alleged that the respondent 
had failed and neglected to frame the account 
as requested and to act therein as he was 
obliged to do, and that he verily believed that 
the respondent had not filed any account of his 
administration of the estate. 

The prayer was for an order compelling the 
respondent to file an account with costs against 
him. The judgment for £8 and costs given 
against the respondent in the Periodical Court 
at Lady Grey was for the applicant's expenses 
as a witness in an action brought against the 
trustee by the Divisional Council. The Magis- 
trate in giving judgment in favour of the applicant 
ordered that if the judgment were not satisfied 
within one month from date the defendant (pre- 
sent respondent) was to satisfy it out of his 
private estate, against which execution might 
Inue. 

Co appeal to the E.D. Court that part of the 
Magistrate's judgment which ordered execution 
to issue against the private estate of the trustee 
if the judgment were not satisfied within a 
month, was struck out. 

The respondent filed an answering affidavit in 
which he alleged thatthe second liquidation and 
contribution account was filed with the R. M. of 
Aliwal North on *llth January, 1896. 

The present application consequently resolved 
itself into a question of costs. 

Mr. Molteno for the applicant. 

Mr. Searle. Q.C., for the respondent. 

The application was dismissed with costs. 

Mr. Justice Buchanan said : In the applica- 
tion now before the Court the Court cannot lay 
down any ruling regarding the account, which 
has already been filed. It affects other persons 
besides the applicant and respondent, and con- 
sequently no judgment on that can be given. 
At the present time the question is one of costs. 
Now, it is admitted that the accounts have been 
filed. The affidavits show that there has been a 
long-standing fight between the attorneys, who 
have been making costs unfortunately for some 
time past. An ex parte application was made 

*Oii 12th January, 1893, application was made ax 
parte for a rule nM calling upon the respondent to 
•how caaw why be shoold not be called upon to file 
the account The Court then ordered the matter to 
■tand over until let February, so that notice might 
be given to the trustee. Rbf, 



on the 12th January calling upon the trustee to 
file a second account, but the day before the 
application was made the account was filed. 
Notwithstanding that this account had been 
filed with the Magistrate of the district, pro- 
ceedings were taken thereafter, on the 17th 
January, calling upon the trustee to furnish an 
account which he had already filed, and the 
question is whether these proceedings were 
justified. The accounts were filed be^re any 
notice was given of the application, which was 
therefore an unnecessary one, and must be 
refused with costs. It is another case which 
shows the necessity of giving notice in these 
applications, instead of rushing to the Court 
in the first instance with an ^a^^ar^^ application. 
[Applicant's Attorneys, Messrs. Fairbridge, 
Ardeme k Lawton; Bespondent's Attorney, 
O, Montgomery- Walker.] 



IN THB IN80LVBNT BBTATE OF OEORGB SDWABD 

MANDT. 

Mr. Tredgold applied for an interdict 
restraining George S. T. Mandy, a son 
of the insolvent, from interfering with 
or reaping the crops, or removing stock 
or other property, or disposing of the same, 
belonging to the said estate, at the farm 
Pelion, in the vicinity of Lady Qrey. 

A rule ni$i was granted, returnable on the 
2 1st instant. 



Ji'a; parte MOQIBBOV. t 1895. 

Be MINOBS MGOIBBON. J Feb. 7th 5c 13th. 

Minors — Fuiit s in Mafeter*8 hands. 



This was an application fur authority to the 
mother of the said minors to retain a sum of 
money (£82 lis.) received by her on their 
behalf, and further to draw from the money to 
their credit in the Quardians' Fund a further 
amount for the purpose of paying outstanding 
debt^ and purchasing furniture. 

The facts are these : Mrs. M., (married out of 
community to McQibbon) was on M.'s death in 
1889 appointed executrix dative in the estate. 
Issue of the marriage had been three children 
(aged ten years to five years). M. left two 
houses value £600, and movables realising 
£312 14s. 3d. The latter amount was paid out in 
settlement of the debts and in reducing the 
mortgage on the houses. For some time the 
widow lived in and drew rents from the houses ; 
but after removing to Cape Town she sold the 
houses by direction of the Master and paid the 
amount into the Quardians' Fund to the ctedft 
of the minorSf 



^6 



A sum of £82 Us. was also received by her as 
a leghey for the minors— but Mrs. M. spent this 
for the olothing, education, and maintenance of 
herself and the minors; incurring for this 
purpose, moreover, a further liability of £51. 

The Master called on the executrix dative to 
pay the £82 lis. in to him to the credit of the 
minors. 

Application thereupon was made by her to the 
Court for leave to retain that sum ; and for an 
advance of £105 lis. from amount to the minors' 
credit in the Guardians* Fund to enable her to 
pay off the £61 and to start a boarding-house, she 
being without means and entirely dependant on 
friends. 

Mr. Shell for the applicant. 

Mr. Justice Buchanan said : The applicant, as 
executrix dative, should have paid the money 
received by her to the Master, but instead of 
this, without any authorisation at all, she spent 
the money for the purpose of living. She now 
applies practically for another £100. The children 
are aged ten down to five years, and if this goes 
on, in a very short time there will be nothing at 
all left for the children. The executrix ought at 
once to pay this amount of £82 into the Guar- 
dians* Fund, but under the special circumstances 
the Master need not insist upon the payment of 
this £82. The Coui-t can, however, make no 
further order. 

Mr. Justice Uplngton concurred, although he 
had some doubt whether the mother should not 
be compelled to pay the money received on 
account of her children, as she was bound to do 
in her capacity as executrix dative. 

Postea (13th February, 1895). 

The Court ordered that £75 be advanced as 
prayed, on condition that the interest due from 
the Guardians* Fund to the minors be not drawn 
for three years. 

[Applicant's Attorneys, Messrs. J. & H. Reid 
& Nephew.] 



IN THE MATTBB OF THE MINORS SPIES. 

Mr. Watermeyer moved for authority t^ raise 
a sum of money on mortgage of the farm 
Romansfontein, in the district of Albert, be- 
queathed with other property to the said 
minors, to satisfy certain legal and other ex- 
penses necessary to enable them to obtain 
transfer. 

The order was granted. 



i:x parte TROWEn, | FeWth. 

Marital power — ^Non-exclusion in ante- 
nuptial coptraci>— Piopertjr registered in 



wife*8 name — Leave to transfer without 
husband's authority — Rule nisi. 
Where a woman manned by ante-nuptial con- 
tract ^ the marital power not being excluded^ 
sought to tramfer property registered in her 
natne without the assistance of her 
husband^ whose whereabouts xoere unknown, 
the Court granted a ride calling upon the 
husband to show cause why his wife should 
not be allowed to pass transfer. 



This was the petition of Johanna Wllhelmina 
Paulina Elizabeth Trower (bom Jansen). 

The petitioner was formerly married to one 
Buur, from whose estate she took over certain 
landed property situate at Rondebosch, Cape 
Division, more fully described in certain deed of 
transfer dated 21st September, 1882. 

In 1882 the petitioner remarried one Trower, 
excluding community of property but not the 
marital power. Owing to her husband*s intem- 
perate habits she desired him to leave her unleaa 
he reformed. The husband left and since his 
departure for Johannesburg she had had no 
direct communication with him. 

The petitioner lately sold two lots of 
ground registered in her name and the pur- 
chasers were now demanding transfer, but 
in consequence of the marital power not 
having been excluded in the ante-nuptial con- 
tract, the Registrar of Deeds refused to pass 
transfer unless the petitioner's husband assisted. 
The petitioner alleged that she intended to 
devote the proceeds of the sale to paying off 
a bond on the property ; that she had endea- 
voured, but without succesH, to obtain her 
husband's signature to a power to effect 
transfer. 

The prayer was for an order authorising the 
Registrar of Deeds to pass transfers to the 
purchasers of the land in question, and of such 
further lot' as she might be able to sell. 

Mr. Tredgold was heard in support of the 
application and relied on Van dcr Broek v 
Regi^rar of Deed* (3 Jut*, 296), and Ferrcira 
V, Registrar of Deeds (6 Juta, 387). 

The Registrar directed the attention of the 
Court to Jouherfs Case (2 Shell, 131). 

The Court granted an order similar to that 
made in Jouherfs Case (2 Shell, 131), the rule to 
be returnable on the last day of term, and to 
be published once in the " Government Gasette." 

[Petitioner's Attorney, C. C. de Viliiers ] 



37 



SUPREME COURT- 



[Before Sir J. H. DS VhXiIBBs COhief Justice), 
Mr. Justice BncHAiirAiir, and Mr. Justice 
IJPffiQTON, K.C.M.G.1 



BOBEKIB T. ROSBBTB. 



f 1896. 
(Feb. 8th. 

This wttB an action for divorce instituted by 
Mr.Eichaid Roberts against his wife, Mrs. 
SQen Boberts (bom l^illiamfl), on the ground 
of her alleged adnltery with one William Owen 
DiTteft. 

The dedburation alleged that the parties to the 
soil were married on tbe 24th December, 1871, 
in the pariah church of Peri an, Amworthel, in 
the coiintsr of Cornwall, England, and that the 
ouLniage was etiU in full force and effect. That 
there had been iaaue of the marriage two 
daughters, one of whom was still a minor. 
That at diTcrs times and places in this colony, 
bat more particularly at Cape Town, between 
the years 1888 and 1895, the defendant wrong- 
fully and unlawfully committed adultery with 
one William Owen DaTies. 
The plaintiff claimed a decree of divorce. 
Mr. Shell appeared for the plaintiff, and 
infonned the Court that Davies had been 
joined as a co-defendant, and £500 damages 
claimed as against him, but that he had com- 
prmniaed the claim, and the action against him 
was withdrawn. 
The defendant was in default. 
Bichard Boberts, the plaintiff, deposed that 
he and the defendant were married on the 28rd 
December, 1871, in the parish church of Perran, 
Amworthel, Cornwall. There were two children 
of the marriage. Witness came to South Africa 
alone in 1877 ; his wife followed him in 1878, and 
he liTed witii her in Sast London up to 1888. He 
then became acquainted with Davies, who had 
kct his wife, and he came to witness's house as 
a boarder. Witness subsequently ordered him 
oat of the house in consequence of Davies being 
too familiar with his (witness's) wife. After 
Davies left, the defendant went to Aliwal North, 
taking one of the daughters with her. On her 
retom from Aliwal North she refused 
to live with witness again, and she finally 
left Ea^t London in 1888, taking the yoimgest 
daughter (then about six) with her. Had not 
seen his wife since, and in October last he 
advertised for the whereabouts of his daughter, 
and received a certain letter in reply. Heard 
his wife was in Cape Town about two years ago, 
tadio consequence of what he heard instituted 
then proceedings. One of his children was 
nfiried, and the youngest (aged thirteen) was 



with her mother. He did not claim the custody 
of the child The photograph (produced) was 
that of his wife. 

Mrs. Letta Maria Hine, living at 10, Galedon- 
street, deposed that the photograph was that of 
Mrs. Davies. Witness attended her in three 
confinements during the last six years, the last 
was on 12th September, 1891. She knew the 
reputed husband of Mrs. Davies. He was not 
the plaintiff. 

Mrs. Sarah Wright, iving at Annie Villas, 
Main-road, Woodstock, identified the photo- 
graph as that of Mrs. Davies. Mr. and Mrs. 
Davies hired one of witness's cottages, and they 
lived together. The Mr. Davies was not the 
plaintiff. 

The Court granted a decree of divorce. 

[Plaintiff's Attorney, C. C. Silberbauer.l 



DAY V. DAT. 



f 1895. 
I Feb. 8th. 

This was an action for restitution of conjugal 
right, failing which for divorce, on the grounds 
of the defendant's malicious desertion. 

Mr. McLachlan appeared for the plaintiff. 

The defendant was in default. 

William Arthur Day, law agent practising 
at Cape Town, said he was married to the defen- 
dant at S. George's Cathedral 5th October, 1885. 
They lived happily for two and a half years, 
when they had differences, and she ran away to 
England. Did not know she intended to go 
until her clothes were packed in boxes and put 
on a cab. They were married by ante-nuptial 
contract. He ultimately got her back from 
England. Before going she contracted certain 
debts in Cape Town, and witness paid her return 
fare. While she was away witness sent her 
£5 or £6 per month. He had great 
difficulty in inducing her to come back, 
but in 1889 she came back to South 
Africa, when after living together for 
two or three weeks they again fell out. His 
wife drank. At that time he suffered severely 
from rheumatism. After two or three weeks 
she commenced drinking again, and was mad 
drunk every day ; in fact, she was the cause of 
the death of his little child. At that period 
witness was in bed ill. One day his wife came 
in and threw some of the furniture at witness, 
who was in bed and could not move. Finally 
she advanced towards him as though about to 
strike him, and then witness struck her ; the 
only time he had ever struck her in his life. 
His wife issued a summons for assault, 
but afterwards withdrew it. After that 
his wife left him, and went to live in Strand- 
street, selling the furniture ^hi^h witness l^a4 



1 



8g 



settled upon her by ante-nuptial oontraet. 
Witnen still attempted to bring about a reoon- 
Qiliation, but she said that the best thing he 
oould do was to get a divoroe. Subsequently 
she went to Mr. Cecil Bhodes and told him a 
lot of lies, and Mr. Bhodes gave her a ticket to 
England, and she also borrowed £10 from Mr. 
Oraaff, and she then went to England. Both 
the children were dead. An inquest was held 
on one of them. As a matter of fact, his wife, 
being drunk, put the child in the senrant^s bed 
one night; the next morning the child was 
dead. If she now came back to him he would 
hare to receive her, but he would not send her 
any more money. He denied that ne used to 
drink excessively. It was not true that he had 
ever been guilty of cruelty towards his wife. 

The Chief Justice said he had received a 
letter fiom the wife, in which she stated that 
she would be perfectly willing to come back, 
but had no moans, and that she left plaintiff on 
account of his cruelty and refusal to maintain 
her. She was at present in domestic service. 

Peter Weineman gave evidence referring to 
the occasion of the alleged assault. Witness 
served the sununons on the plaintiff, and found 
him lying in bed very ill. The furniture was 
lying broken all about the room. Mr. Day was 
very weak and ill, and said his wife had tried 
to cut his throat. 

Mr. C. C. Silberbauer said he knew something 
of the circumstances. In January, 1892, Mrs. 
Day came to witness complaining of her hus- 
band's intemperance and cruelty. She subse- 
quently issued a summons, but the hearing was 
adjourned on account of the pla^tiff*s illness, 
and afterwards was abandoned on account of 
the illness of her child, which afterwards died. 
From his own personal knowledge he did not 
know whether her allegations of cruelty were 
true or not. Before her marriage she was lady's 
maid to Lady Bobinson, and seemed very 
reluctant to give publicity to her troubles. 
From his own observation, he never thought 
that Mrs. Day drank ; she had not the appear- 
ance at any time of a woman who drank. Mr. 
Day, however, was sometimes intemperate. 

Mr. Weineman (recalled) gave evidence as to 
the death of the child. At the time of the 
alleged assault it was in a starving state ; was 
nothing but skin and bone, seemed neglected, 
and afterwards died. 

The Court granted an order for restitution of 
conjugal rights, defendant to return to the 
plaintiff on or before the 1st May, failing which 
to show cause why a decree of divorce should 
not be granted on the 16th May. Personal ser- 
vice to be effected and the plaintiff to arrange 
^ith one of the steamship companies to give 



his wile in England a seoond-dass ticket to 
South Africa should she elect to comply with 
the order. 



HAUPrrLEISCH V. HAUPTFUSIflCH. {yebfgth 

This was an application by the defendant^ 
who is being sued by her husband for reetitutioa 
of conjugal rights, for the sum of £60, to enable 
her to defend the action, in whieh die claims 
in reconvention a decree of judicial reparmtion 
on the grounds of her husband's emelty. The 
parties are married in community. The joiat 
estate was sold some time ago and realised £100l 
The case made by the respondent was thai hia 
wife was already in possession of £210, belonging^ 
to the joint estate, and he tendered £90 In 
addition. The applicant denied that the £80 
formed part of the joint estate, and alleged that 
it belonged to the child of the marriage, haying 
been received from its grandfather. 

Mr. Molteno for the petitioner. 

Mr. Benjamin for the respondent. 

The Court granted an order for the payment 
by the husband to the wife of the Fum of £86 
for the purpose of enabling her to meet the coata 
of the action. The bar to be removed and the 
applicant allowed to enter appearance and 
plead. Costs to be costs in the cause. 



SUPREME COURT- 



[Before Sir J. H. DE Villibbb, BLC.M.G. (Chief 
Justice), Mr. Justice Buchanan, and Mr. 
Justice Upinoton, K.C.M.a.] 



OLBUSNTB AND CO. V. V08.— TLB- 
MBNTB AND CO. Y. VAN BHTN. 



B- f 1896. 
r. \ Feb. llth. 

Sale cf goods — Nou-delivery within stipulated 

time — Onus. 
In an action on an oral contract for the sale 

qfgood$ the defendants pleaded, as the drfeuee 
for their repudiation of the contract, the nan- 

fulfilmefU of a conditiott that the goods ihould 

be delivered by a specified date. 
Held, that the onus of proving that no such 

condiiioti formed part (if the contract lay an 

the plaintiff. 

These two actions were heard together. In 
the first the plaintiffs claimed the wxm of 
£11 18b. 4d. damages. 



H 



Tile declMtttloii mlleged that on or about Slat 
February, 1884, the plainti&, through their 
agent, Robert Howeon, Bold to the defendant 
eertain goods for the sum of £26 Sb. 8d. The 
goods were to be ordered from Europe. 

That the plaJatiffs paid on aooount of defen- 
dant dook dues and other ohargee amounting to 
It415e.9d. 

That the defendant refused to accept or pay 
for the goods or charges, and had repudiated the 
oontracts. 

That on aoth August, 189i, after due notice to 
the defendant, the plaintiffs caused the goods 
to be sold by public auction, when they realised 
£19 4a. 8d. n«t. 

The piaintifGs claimed the difference between 
the price of the goods and that which they 
realised by the sale at public auction, viz., 
£11 13b. id. as damages, with intereat a tempore 
marae and costs. In the second action the 
plaintiffs claimed £85 18b. 6d. and costs. 

The first defendant pleaded that at the time 
of the sale Howson promised and agreed to 
deliTer the goods not later than the end of 
April, 188i and that the defendants would 
receive notice that the goods were forthcoming 
by the middle of April, 1894, and in the event of 
the notice not being received by the defendants, 
and the goods not being delivered by the said 
date, the order was to be couBidered cancelled. 
The order for the goods was given by the de- 
fendants upon this express condition and stipu- 
Ution. 

That the said notice was not received by the 
defendants, and the goods were not received by 
the end of April as agreed upon, and that there- 
after the ftrst defendant on 9th May, 1894, gave 
notice in writing to the plaintiffs, as he was 
entitled to do, that the order for the goods was 
eangelled. 
The replications joined issue. 
Kr. Bndianan fcft the plaintiflii. 
Kr. Graham and Mr. Benjamin for de- 
fendants. 

Bobert Howson depoeed that he had been a 
traveller for the firm of Hamilton, Olemeiits & 
Co. for eighteen months in South Africa. He 
naehed Tan Bhyn's Dorp on the 19th Febmary 
last year. Mr. Gert van Rhyn came to him and 
looked at his samples. Witness told him it 
would take about three mont^ to get goods out 
fra« fEngtand. The day after he met Yos and 
disneaed business in the same way. Mr. Yos 
nbseqaently said he would not order them as 
he wanted the goods to oonw out with Mr. 
Van Rhyn^ so as to sa>e duvges. On the 
Silt the deiendants both caiied on witness 
Mid orAwad goods. There was no speeifled 
time mentioned within wUoh the goods 



were to be delivered. It would have been im- 
possible to guarantee delivery within a certain 
time. Goods ordered on 21st February in Yan 
Rhyn's Dorp could not possibly be got out 
by the 14th April. The goods were ordered to be 
delivered at the Cape Town Docks. The de- 
fendants did not appear to be in any hurry. He 
sent the order on by the post that afternoon. 
Some further goods were ordered on the night 
of Wednesday, 21st, after the post had left. 
Witness went to Garies, in Namaqualand, and 
returned to Yan Rhyn's Dorp in a fortnight, 
when Mr. Yan Rhyn gave him another small 
order. It was agreed that the goods were to 
come out under one name, but Yos's and Yan 
Rhyn^s goods were to be separately packed. 
Witness sent the order to his partner in Gape 
Town, he to forward it to Europe. It was not 
the custom io bis busincBs to guarantee delivery 
within a short space of time. He was to draw 
against Yos for all the goods. Did not know 
when the goods were delivered. 

GroBS-examined by Mr. Graham : Received no 
commission at all from his firm ; only salary 
and expenses. Told the defendants the charges 
on getting out goods would be 224 P^r cent, to 26 
per cent on the cost. They did not say that 
the orders should be cancelled if delivery was 
not made by the end of ApriL Did not seem at 
all anxious about the time of delivery. Had a 
commercial traveller's licence of £2&. Some- 
times, but very rarely, sold his samples. The 
goods were to have been delivered to de- 
fendants* order at the Cape Towa Docks, but 
no time was stated. Witness's firm was to 
advise them on arrivaL and they were then to 
say whether the goods were to be sent ria 
Thorn Bay or Piquetberg-road. Yos knew 
in a general way what Yan Rhyn 
had ordered, and Yos said the goods were to 
come out in one lot. Yos told him to draw on 
him for the whole of the goods and they were 
all to be sent in his name; Did not know 
that the defendants were previously absolutely 
ignorant about ordering goods from Europe. 

Mr. Graham produced a letter from Yos, 
dated 9th May, cancelling the order on account 
of delay in delivery and a reply from plaintiffs 
stating that the cancellation was unreasonable, 
and that the goods were then on the water. 
Also many other letters from the plaintiffs to 
Yos, asking for instructions as to forwarding 
the goods from Cape Town. Finally, on the 
30th August the plaintiffs sold the goods by 
auction at defendants' risk. 

Cross-examination continued: A farmer 
appeared while he was negotiating with the 
defendants at the time of the order, but he was 
not praaent in court. 



46 



Be-examined : The goods were misoellaneoug, 
and not speoially required for any season of the 
year. Bought a horse from Van Rhyn for £15, 
and he soon after had to sell it for £3. 
It was a very bad horse. 

By the Court : Defendants knew for whom he 
was travelling. It might have been possible to 
get the goods out in two months, but it was 
rarely done under three months. 

Arthur Clements deposed that the last witness 
was a traveller for his firm. It was not the 
custom in his trade to guarantee the delivery of 
goods at so early a date as six weeks from 
England. The goods arrived on the 11th May. 
It was the quickest time his firm had ever got 
goods out from England. Supnosed it was 
because the goods were in stock. His conten- 
tion was that the goods were delivered within a 
reasonable time. 

This dosed the case for the plaintiffs. 

Jacob Jacobus Vos, a tailor at Van Rhyn's 
Dorp, said he first began to negotiate with How- 
son about buying the goods on Tuesday morn- 
ing, 20th February of last year. Howson said 
the goods would be in Cape Town by the middle 
of April, and that if they did not come by that 
date witness need not take them. Would not 
have given the order had Howson not given this 
guarantee. Nothing was said about witness 
paying for all the goods. Did not make any 
such arrangement with Mr. Van Rhyn. It was 
only stipulated that their goods must arrive 
together. 

Cross-examined: Never ordered goods from 
England before. Insisted on Howson guarantee- 
ing the delivery, and he gave the verbal 
guarantee. Wrote to plaintiffs on May 9 can- 
celling the order. Had not the slightest idea 
about the time the steamers took to arrive from 
England. Did not know what was the day of 
departure of mail steamers. Promised to call 
on Mr. Clements in Cape Town, and went 
to Cape Town shortly after the order was given, 
but did not call and impress on Mr. Clements 
the urgency of the affair. 

By the Court t Was anxious to have the goods 
at the stipulated time, but he did not write to 
the plaintiffs at oncA when the time had expired, 
because Howson had agreed that the order 
should be cancelled. Plaintiffs replied on 11th 
May that he could then have the goods. Busi- 
ness was good at that time, but witness would 
not then take the goods, because he had had to 
buy the g^ods elsewhere. 

The Chief Justice said the witness should 
produce invoices showing he had bought goods 
elsewhere before 9th May. 

Daniel Peter G-rystenberg said he heard How- 
ton tell both the defendants that he would have 



the goods in Cape Town by the middle of April, 
and delivered in Van Rfayn's Dorp by the end 
of April. If not, he would not force them to 
take delivery, but would go "smousing " (hawk- 
ing) with them. 

Cross-examined : That was all he heard pass 
between Howson and defendants. Did not hear 
the other part of the arrangements. 

Qerhardus van Rhyn said that when the 
order was g^ven Howson said he could send it on 
by post that day to Cape Towa, and the goods 
would be in Van Rhyn*8 Dorp by the end of 
April. They were to be in Cape Town, and 
Howson was to advise witness two weeks before 
the end of April, asking for instructions as to 
forwarding. Wanted the goods in the beginning 
of May, because that was a good time for busi- 
ness. Asked Howson more than once, and he 
replied that the goods would positively be there 
by the end of April; if not, he would go 
'* smousing " with them. He told Howson dis- 
tinctly that if he could not guarantee BVLch. 
delivery he would not give the order, and How- 
son replied that if the goods were not in Cape 
Town by the middle of April he could consider 
the order cancelled. 

By the Court : Did not know at the time that 
on May 9 Vos wrote to plaintiff cancelling the 
order, nor did Vos come to witness with the 
letter he received in reply. In fact, they did 
not talk together about it. 

Cross-examined : He gave an additional order 
a week later, and the goods were all to be packed 
together. It did not strike him that it would 
be an impossibility to get the goods out in six 
weeks. He relied altogether on what Howson 
said on that point. In consequence of the non- 
arrival of the goods he had to buy locally. 

By the Court : Knew by the end of May that 
his goods had arrived in Cape Town. Reoeived 
the goods he bought in substitution on the 
14th June. 

Peter Jacob Albert Bonthuis said that he was 
present at the time the goods were ordered, and 
heard Van Rhyn say distinctly to Howson that 
it would be no good ordering unless the gooda 
could be in Cape Town by the middle of ApriL 

Cross-examined: Did not know Van Rhyn 
had to order any goods from others, as Howson's 
goods had not arrived. 

Nicolas Hendrik Moetert, a farmer, deposed ! 
that he was in Howson 's sample-room when he { 
heard Van Rhyn ask Howson if he would 
guarantee the goods being in Van Rhyn'a Dorp 
by the end of April. Howson replied that he 
would, and that if they did not arrive in that 
time he would take the goods over himself from 
the firm, and go " smousing.*' 



41 



Mr. Ht>w«o& Wm agAin p«t into IIm boz« and 
ezsminad by tlie Ghitif JuBiiee : He had experi- 
ence as a commercial traveller in Bngland* He 
nerer left a oopt of the order with his ons- 
tomerst but hifi pra<!tioe in South Afiica had 
been to ^et a copy of the order signed by the 
CQfetomer. Did not do bo in this caee, as he was 
pressed for time. Nothing of the kind stated 
by Mcetert look place between witness and Van 
Rhyii. Never led the defendants to believe that 
the goods would be in Cape Town by 14th April. 

Mr. Vos (alfio recalled), examined by the 
Chief Justiee, said that on receiving the letter 
and invoioe from the plaintiffs first of all, 
he did not at once go and show it to Van Rhyn. 
Did noi do so because he lived at the other end 
of the town. 

After ai)g«ment. 

Judgment was given for defendants with 
costs. 

The Chief Justice said : I confess I have had 
great difficulty in arriving at a decision in this 
ease. It is quite true that on one side we 
have only the evidence of one witness and on 
the other side that of five witnesses^ but ques- 
tions d fact must be decided not so much by 
nambers as by weighk The probabilities of the 
caeei^rtsia/d^tf appear tome to be somewhat 
in favour of the plaintiff, but there is this un* 
fortunate omission in the plainriff's 
conduct, that is that he did not at the time 
have the order signed by the defendants* It 
was his custom in other cases ; it had been his 
custom in other cases to get his purchasers to 
sign orders, but in this case he unfortunately 
omitted to do so. Now we have more than 
once said that although the Statute of Frauds 
does not apply in this colony, and that a purchase 
ofgoodi to the amount of over £10 can be 
entered intoorally, still it must be proved clearly 
to the satisfaction of the Court that the pur- 
ehaee was made, and if the matter is left at all 
in doubt, the presumption is against the alleged 
porchase and if the plaintiff does not fortify 
himself by a written contract he has only himself 
to blame if any injustice befall him. Now I am 
act prepared to say that Howson comes into 
eoort to perjure himself. I firmly believe that 
he believed what he said to be the truth, 
but I think it is quite possible that he was mis- 
taken, and that in his liurry to get through his 
business he may have stated and made promises 
whieh he has now forgotten, and which he 
forgot to mention to his principals when he 
forwarded the order, because we cannot lose 
sight of the fact that some of the witnesses on 
the ottier side are perfectly respectable, and one 
of them (Mr. Mostert) is not connected with the 
parties in any way, and as far as the.Court can 



judge is perfectly impartiaL Well, Mr. Moettet 
said he Heard the conversation between Mr. 
Howson and one of the defendants, which if 
true clearly proves the case for the defendants. 
Then Mr. Bonthuis and Mr. drystenberg fully 
support the evidence given by the defendants. 
Well, if that evidence is true it is quite clear 
that the plaintiff's evidence cannot be relied 
upon, but I am perfectly certain that Howson 
does not come to the court with the object 
of stating what is not true. I be- 
lieve he is mistaken as to what took place, 
and that he gave the parties to understand that 
the goods would be here on the 90th April, and 
that it was a condition of the sale that they 
should be so delivered. Under the circumstances 
I regret to say that in my opinion judgment 
must be for the defendants with costs. 

Mr. Justice Buchanan: I concur on the 
ground that the onus of proof lies on the plain- 
tiff. In this case it is possible that Howson 
may have made a mistake, and if judgment 
were given in favour of the plaintiff it could only 
be on the grounds of the wilful and corrupt 
perjury of the witnesses for the defence. I 
think a great deal can be said in favour of the 
plaintiff's case, but the onus of the proof lies on 
the plaintiff, and such proof has not been forth- 
coming. 

Mr. Justice Upington : I have also arrived at 
the conclusion that the defendants are entitled 
to succeed, but I must say I have arrived at that 
conclusion with great hesitation. 

At the request of Mr. Qraham defendaots 
were allowed their expenses as witnesses. 

[Plaintiff's Attorney, —.Gibbon ; Defendants' 
Attorney, G. Montgomery- Walker.] 



NEWMAN V. EAST LONDON TOWN f p^u {2th 

oooNCiu lMaroh5th; 

Negligence— Liability of Town Council — 
Contributory negligeuce —Contractor's 
negligence — Proximate cause. 

Where two or more acts of negligence have 
contributed to cause an injury the test of 
liability for each act is whether the harm 
complained of is such as a reasonable man 
should hare foreseen as likely to happen. 

The liability of one person for his act does 
not exculpate another person whose neglU 
gence has contributed to an injury which he 
ought to have foreseen as likely to happen. 

The Towfi Council of East London having 
engaged a contractor to re-construct a road 
and to make an excavation immedieitely 



4& 



(idjoiniftg the road, the contractor's gervanis 
left some casks of cement standing on one 
side of the road and placed some large stones 
ixear the excavation on the opposite side. 

The plaintiff's horse, being driven past the 
casks, shied at the casks and bolted towards 
the excavation. 

When one of the wheels of the cart teas a few 
inches from the excavation the plaintiff 
jumped from the cart and alighted upon a 
stone. 

The horse and cart moved on and escajyed 
unhurt, but the wheel of the cart struck the 
plaintiffs leg and broke it. 

Held, on appeal from the East London Circuit 
Court, that, although the horse may in the 
first instance have shied at the casks, if 
the excavation was improperly made and 
then left unfenced by the defendants and they 
ought to have foreseen danger from their 
negligence, they would have been liable if the 
plaintiff had fallen into the excavation. 

Heldf further, that if the plaintiff in jumping 
from the cart did what a reasonably prudent 
man, impelled by the instinct ofself-pi'eserva- 
tion, would have dmie, he was not guilty of 
contributory negligcftce and the injury is 
legally attributable to the existence of the 
improper excavation, although the contractor 
may also be liable Jor imi)roperly placing the 
casks in the street. 



This was an appeal from a judgment of the last 
Circuit Court held in East London, in an action 
in which the present appellant (plaintiff in the 
lower Court) sued the Major, Councillors, and 
townsmen of East London for £2,500, damages 
for negligence. 

The plaintiff's summons was in the following 
terms : 

1. The defendants are the Municipal Council 
of Bast London, and as suoh« rested with the 
control and management of all roads within 
the Municipal limits of the Municipality of 
East London, and are the right parties to he 
sued in this action. 

2. On or about the 1st August. 1893, the de- 
fendants were repairing and constructing a 
road, known as the St. Peter*s-road, within East 
London. 

8. The defendants, in breach of their duty to 
carry on all operations on a road left open for 
traffic in a manner consistent with the safety 
IM^d protection of persons passing along the 



said road, negligently and carelessly placed 
several casks of cement with a loose sail over 
them on one side of the road, and dug a deep 
hole or excavation, and placed a heap of large 
stones near the said hole on the other side of 
the road, leaving a distance of about 14 feet 
between the said casks and the said hole and 
stones. 

4. The said hole or excavation was not fenced 
off in any way. and the sail upon the said casks 
was not properly or securely fastened. 

6. By reason of the said careless and negligent 
acts of the defendants the plaintiff's horse, 
drawing in a cart, in which plaintiff was driv- 
ing on the said 1st August, 1898, was, on coming 
up to the said casks, suddenly frightened by 
reason of the said fail flanping.and swerved and 
ran away with said cart directly towards the 
said hole and stones. 

6. Plaintiff, to save himself from being pre- 
cipitated into the said hole, which he saw no 
chance of the cart escaping, jumped from the 
said cart, and in doing so fell against the said 
stones already referred to, and had his leg com- 
pletely broken in two places. 

7. The plaintiff has suffered damages in the 
premises, in pain, pern^anent injuries, medical 
expenses, and loss of business, in the sum of 
£2,600, which defendants refuse to pay. 

8. Wherefore plaintiff prays : {a) Judgment 
for £2,600 and interest a tempore morae ; (h) 
general relief and costs of suit. 

The defendants pleaded as follows : 

1. The defendants deny every allegation of 
fact and conclusion of law in the plaintiff^a 
declaration contained, and joins issue thereon 
with the plaintiff. 

2. And for a special plea, the defendants say 
that on or about the 17th day of July, 1S9S, the 
defendants entered into a certain contract with 
one Charles Ford, which contract was, however, 
only signed on the 2nd day of August, 1898^ 

3. Under the said contract, the said Charles 
Ford was an independent contractor, and free 
from all control by the defendants. 

4. The acts and omissions complained of in 
the third and fourth paragraphs of the plain- 
tiff's summons, if they were actually done and 
caused, were done and caused by the said 
Charles Ford, independently of the defendanie, 
and without any interference or control by the 
defendants. 

6. And for a further special plea, in case the 
above should be deemed insufficient, but not 
otherwise, the defendants say that the plaintiff 
was guilty of contributory negligence, inasmuch 
as the plaintiff, without any necessity or just 
cause, jumped out of his said cart on to the sai4 
stonee. 



43 



6. The injury, if any, Bustained by the plain- 
tiff, was dne to his said oontributory negligence, 
and not to any negligence on the part of the 
defendants. 

7. The defendants pray that the plaintiff's 
claim may be dismissed, with costs of suit. 

The following are the material clauses of the 
contract entered into between the Town Council 
and Ford : 

8. The Mayor and Councillors reserve to 
themselves the right of deviating from the plans 
and specifications, either by adding to or 
diminishing therefrom, without vitiating this 
contract, the value of such addition or altera- 
tion to be ascertained by measurement and 
added to or deducted from the amount of the 
contract at the prices specified, and the orders 
for which additions or diminutions shall 
invariably be in writing, signed by the Clerk of 
Works. 

5. The contractor is to remove, at his own 
cost, any materials or rubbish which may result 
from the execution of the work, within such 
period, and removed to such place, as shall be 
directed by the Clerk of Works. 

6, If it shall appear to the Clerk of Works, 
that any work has been executed with unsound 
or imperfect materials, or unskilful or imperfect 
workmanship, the contractor shall rectify and 
reform, or reconstruct the same, in whole or in 
part, as the case may require, at his own proper 
cost and charge, and in the event of his refusing 
eo to do within the period specified by the Clerk 
of Works, or to take back any materials or 
articles which may be considered by the said 
Oierk of Works to be unsound, of bad quality 
or not agreeable to the terms of this contract, 
and to provide immediately suitable material in 
liea thereof of those condemned, then the 
Mayor and Council shall be at liberty forthwith 
to employ other tradesmen to perform the work 
and to cause the material to be purchased ; and 
any excess of expense thereby incurred to be 
defrayed by the contractor and to be deducted 
from any sums due, or to become due to the 
contractor from the Municipality, or he may be 
called on by the Municipality to refund the 
same ; and in case the contractor shall refuse to 
do so, then he shall forfeit his contract. 

7. The Mayor and Councillors, or any person 
deputed by them, shall at all times be allowed 
to inspect the works in progress. 

8. No portion of the work is to be sublet, 
unless permission be giTen in writing by the 
Mayor. 

9. The contractor, his agent, or a duly quali* 
lied foreman is to be in daily and constant 
attendanoe i^K>n the works. 



10. The contractor shall not continue to 
employ upon the works any artificers or 
labourers who may be found inefficient or 
inattentive, or who shall act improperly, and 
in case the contractor shall refuse to dismiss 
such objectionable persons, the Mayor shall 
be at liberty to stop the works. 

11. The contractor shall complete the works 
within the period specified in the letter of 
tender, and in order to prevent inconvenience to 
the public service by improper delay on the part 
of the contractor, the following course is to be 
adopted: The Mayor and Councillors will 
stipulate the periods by which certain propor- 
tions of the works are to be completed, either 
at the commencement of the work or from time 
to time as it proceeds ; and if the contractor 
should fail to complete the first or any subse- 
quent proportion within the time stipulated 
by the Mayor and Councillors, the Mayor and 
Councillors are at liberty to discontinue the 
work forthwith, and to employ other persons to 
execute the remaining proportion; and any 
extra expense that may be incurred by this 
proceeding shall be paid by the contractor on 
demand of the Mayor and Councillors. 

CONTRACT. 

The contractor is responsible for all damage 
to persons or property arising out of this con- 
tract, and in the event of accident to persons, 
cattle, horses, sheep, or stock of any sort from 
insufficient protection, the contractor shall 
indemnify the Council from all claims on 
account thereof. 

The facts appear from the judgment of the 
Judge- President, which was as follows i 

Plaintiff, an auctioneer, broker, and shipping 
and forwarding agent, Bast London, sues the 
East London Town Council for A2,500 as 
damages for an injury sustained by him on 
1st August, 1898. The plaintiff alleges that 
on that day the Council, being vested with the 
control and management of all roads within 
the Municipal limits of East London, were 
repairing and constructing those in the road 
known as St. Peter's Road, and, in breach of 
their duty, placed several casks of cement with 
a loose sail over them on one side of the road) 
and dug a deep excavation and placed a large 
heap of stones near it on the other side of the 
road, leaving a distance of about 14 feet between 
the casks and hole and stones, the excavation 
not being fenced nor the sail securely fastened. 
By reason of these negligent acts, plaintiff's 
horse, drawing a cart in which plaintiff was 
driving, was suddenly frightened by the sail 
flapping, and swerved and ran towards the 
stones. Plauitiff thereupon, to avoid being 



44 



iMreeipitated into the hole, jxunped from the 
Cttit, and, in doing so, fell againfit the stones 
and hroke his leg. The delencants, after 
pleading generally, pleaded speoially that on 
the 17th July, 1898, they entered into a special 
oontraot with one Charles Ford, which was 
signed on the 2Bd August. Under it Ford was 
an independent contractor and free from all 
control by defendants, and that if the injuries 
alleged were caused, they were tsaused by Ford 
independently and without any interference 
or control on the part of the defendants, who 
further specially pleaded that plaintiH was 
guilty of contributory negligence, because, 
without any necessity or just cause, he jumped 
out of the cart <m. to the stones, and that if 
«Dy injury was sustained it was due to plaintiff's 
oontributory negligence and not to any negU- 
-genee on the part of the defendants. I find 
the facts to be these : In July, 1898, defendants 
contracted with Charles Ford to widen St. 
Fetor's Boad, at that time 33 feet wide, at the 
spot where the injury was subsequently sus- 
tained. Ford thereby agreed, at his own cost, 
to exeouie the whole of the worl^ according 
to the planned specifications, and to work in, a 
workmanlike manner to the entire satisfaction 
of defendant's Clerk of Works. Ford agreed to 
accept the decision of the Clerk of the Works en 
all points connected with the work and material. 
The Council agreed to pay Ford MM per English 
chain for every chain of roadway constructed 
according to specification, the Clerk of Works 
being the sole arbitrator as to the nature of 
the work, soundness, and material. The defen- 
danta reserred the right of deviating from the 
plans and spedfloations, the contractor to find 
all tools, taokle, carriage and cartage, and to 
remoTe, at his own cost, all material and 
rubbish which may result upon execution of 
Work; but, if it appeared to the Clerk of the 
Works that the work was unsound, or material 
imperfect, the contractor shall reconstruct as 
may be required by the Clerk of the Works ; 
failing to do so, the defendants should be at 
liberty to employ other tradesmen to perform 
tlM work. Acting under this contract, Ford 
was to eontkiue tm excavation at a dip in 8t. 
Peter's Bond, and building stones were placed 
near this excavation, occupying about six feet 
ol ezisthig road abutting an. the excavation. 
On the other side of the road and occupying 
about three feet of that roadway, he placed 
some barrels of cement and covered them witl\ 
a sail. Thia was done on the aist July, 1893. 
Ho barrier was placed between the old road 
aad the exoavation, but, m the day time^ the 
•xcavatioat loose stones, and the barrelB of 
gem«nt were Yeijr dearly visible, and a space 



ol about 26 feet was left open for the traffic 
On the let August, plaintiff was travelling 
along this road in his buggy, accompanied by 
his nephew, a lad of fifteen, and, as he ap- 
proached that part of the road where barrels of 
cement were lying, his horse shied at the cask 
and bolted in the direction of the stones and 
excavation. Fearing injury, the lad jumped 
out with his uncle's approval and escaped 
unhurt. Plaintiff acting as he thought for the 
best, followed the lad's example, and jumping 
out fell on the fringe of the stones, where his 
leg was broken. The horse carried the oart 
on, which was not upset but stopped by a tree 
not far off. Plaintiff was in consequence a 
sufferer for three months, and has not quite 
recovered the use of his leg. That morning, 
on going to business, plaintiff had passed the 
same spot, when the casks and stones were 
already there. The plaintiff's contention ia 
that Ford was not an independent contraotar, 
and that there was negligence in placing the 
casks and stones where they were, and also in 
making the excavation without sufficient pro- 
tection; that the horse was not to blame nor 
the plaintiff; that the injury was caused by 
a combination of circumstances beginning with 
the improper position of the barrels which 
caused the horse to shy and bolt ; and bolting, 
the plaintiff was obliged (to save himself frooi 
being precipitated into the excavation) to jump 
out, and, jumping, injured himself against the 
stones improperly placed where they were ; that 
inasmuch as Ford was not an independent 
contractor, the defendants are liable, having 
undertaken the reconstruction of the road; 
that even had Ford been an independent con- 
tractor the defendants would have been liable, 
inasmuch as they did not contract in a manner 
to secure the safety of the public, and that the 
contract itself necessitoting the excavation, 
the defendanto cannot be allowed to screen 
themselves from liability of their agent under 
the contract. 

The defence is, first, that plaintiff was the 
nnfortunate victim of a pure accident; and 
secondly, that if there is liability anywhere, 
it is in Ford, who was an independoit con- 
tractor; that, even if the excavation was 
contemplated by the contract, the pablic 
ought to have been warned of its exiatonoe 
at night by lamps and barriers (there was 
nO necessity for doing so in the day time . 
when it was deariy visible); and that at mos 
could the injury be attributed to the scare caused 
to the horse by the temporary placing of the 
cement casks on the edge of the road, which was 
an act not coatemplated by the otmlkmei with 
Ford. The rule of law undoubtedly ia that the 



4^ 



masUr U ftiiBw«i«ble for the aeto or omusions 
of flerv^nts or workmen, while pursuing the 
course of their emplojmeQt, and the principal in 
not aoswerftble for acts or omissions of his 
agent, to whom the execution of a work is 
OQmmitted without any control or power of 
direction being reserved as to the manner of 
executing the work. {Taylor v. Greenhalgh, 
L.B. 9, Q.B. 487, and Pendlebury y. Greenhalffh, 
1 Q,B.I>„ p. 36.) In such a case the contractor 
alone is responsible for damage done by him in 
execution of the works (see Wiffare t. Brighton 
RMway Co., L.R. 4, Q.B. 696), but this rule 
does not apply to cases where the act causing 
the injury is an act which the contractor was 
employed to do, or a necessary consequence of 
the work committed to him. Nor is the 
employer exempted if he commits to the con- 
tractor the performance of a duty incumbent 
on himself (see Pieard y, SmUh, 10 G.B. (N.S.), 
480, and lorry y. Askton, L.R. 1, Q.B. 314). In 
the present case, however, I come to the conclu- 
sion that Ford was an independent contractor 
to whom the execution of the work was com- 
mitted, without control as to the manner of 
executing it* and that the defendants are not 
responsible for Ford's act in placing the cement 
casks and stones where they were place<l. In 
coming to the conclusion that Ford was an 
independent contractor, I apply this test : Did 
the eontraci provide for the interference by the 
Council in the disposition of the stones or 
cement ? No doubt, as caretakers of all roads, 
the Ooonoii had the right to interfere with 
anyone (and, therefore^ with Ford) in disposing 
of anytbing in such a manner as might become 
a nnisance ; but in order to establish the 
relation of master or superior in the present 
case, the oontraot itself must have provided for 
the control by the defendants in this particular 
matter over Ford. In my opinion the ocntract 
does Boi, The right to control implies the 
power to dischaige the servants if they had 
plaood the casks and stones where they did, 
eonkary not to Ford's but defendants' orders, 
or to eaoeel the contract with Ford for a 
similar act of disobedience. This I do not 
think the contract provided. On the other 
band the evidence proves that the excavation 
was a necessary consequence of the work com- 
mitted to Ford, and that inasmuch as there was 
nothing in the contract providing for the pro- 
teeUoii of the public during the course of the 
coDstrnction of the new culvert, which 
necessitated the construction of this excavation 
at one side of the road, I think defendants 
might |wr*»trf have been liable in law, if during 
the night time the injury had been caused in 
ooDseqnenoQ ol OQ pioper indication by lights or 






otherwise of the presence of the excavation ; 
but that is not the present case. The injuxy in 
the present case was either the result of pure 
accident, or the negligence of Ford and his 
servants in placing the cement casks on the side 
of the road. The unprotected excavation cannot 
be blamed. The plaintiff was hurt because he 
had lost control of his scared horse, and had 
there been (instead of an excavation) a lamp- 
post against which he feared to be dashed, the 
lamp-post could not have been said to be the 
cause of the hurt if plaintiff had jumped to 
avoid it. Either the horse was to blame for 
shying and bolting unreasonably, or those who by 
unreasonable conduct caused the horse to shy. 
In coming to the conclusion that blame cannot 
be attributed to the excavation, I would refer to 
the following case as showing that the damage 
should only be attributed to a defect in the 
horse or the presence of the casks. In Scoit v. 
Shepperd, one of Smith's leading cases, 
defendant threw a lighted squib into a crowd. 
It fell upon the stand of one Yates, who to 
prevent injury to himself and wares threw it 
across the market house, where it fell upon the 
stand of one Byall, who threw it to another 
part of the market, where it struck plaintiff • 
It was held that defendant who started the 
squib was liable in trespass, and although the 
case is a leading one principally to show the 
difference between case and trespass, there was 
never any question of liability in defendant as 
being the proximatn cause of the injury. Also 
in Bailiffs of Ramsey Marsh v. Trimty House, 
where a ship becoming unmanageable through 
the neglect of the captain three-quarters of a 
mile from the lee shore, drifted ashore, and 
damaged the plaintiff's sea wall, it was held 
that the neglect of the captain was the proxi- 
mate cause of damage. Again, in the case of 
Lawrance v. Jenhins, 8Q.B.D., 274, and the case 
of Sneezeiby v. Lano and Yo k Railfray Co,, 
1 Q.B.D., 42, where defendsint company was 
held liable for the consequence of their servant's 
act, in negligently sending some empty trucks 
down an incline into a siding, which frightened 
a herd of cattle travelling along a road, and 
which cattle were afterwards killed on another 
part of the railway — this was held to be the 
natural consequence of the negligent act of the 
company's servant. Again in the case of The 
Sisters, 1 P.D.. 117, where a vessel by improper 
navigation compelled another to alter her 
course, and in so altering it she came in collision 
with a third, the first ship was held liable to the 
third for the damage caused. See also Clarke 
V. Chambers, 8 Q.B.D., 327; and Harris v. 
Mobbs, decided in the Common Pleas Division, 
1878, wnere defendant had left a van with 



46 



ploughing gear on the grwsey side of the road 
to stand there for the night. The deceased 
drove by along the road, and his mare, who it 
appeared in eTidence was a confirmed kicker, 
shied at the thing and then kicked and ran 
away, upsetting the deceased and kicking him, 
so Uiat he died ; it was held that th^ act of 
Mobbs in leaving the van was an unreasonabie 
UBure of the highway, and that tie death was 
the proximate and natural result. I quote these 
cases not so much to show that Ford was liable, 
as to illustrate the reasonableness of defendants' 
contention that the excavation cannot be blamed 
as the legally proximate cause of the hurt. 
It 18 not neoeiaary for me to determine that 
Ford was liable. He is not before the Court, 
and that alone should be a sufficient reason for 
not expressing an opinion on his liability, 
uuless it were absolutely necessary to do so for 
the purposes of this case Certainly the case 
of WaUers v. Lhcos^ 7 Juta, 153, is in many 
respects similar to the present one, and there 
the Supreme Court held that the hurt was caused 
by placing two bundles of wood on a highway, 
which caused a horse to shy and injure plaintiff, 
did not give a right of action, the hurt being 
attributed to accident and not neglect. In that 
case the servant of defendant had placed a 
bundle of wood at the side of a road only six 
yards wide and in a place which he himself 
paid he thought dangerous (at that sharp turn) 
to horses suddenly coming up to it. This was 
the opinion of another man who passed the 
spot; and defendant himself on hearing what 
his servant had done« said : ** You stupid, could 
you not find another spot 1 " Notwithstanding 
all this the Chief Justice supported the judg- 
ment of the Magistrate, that plaintiff's tame 
horse taking fright at the bundle and upsetting 
plaintiff's cart did not entitle plaintiff to 
damages, saying that the man who placed the 
bundle there " could not be reasonably expected 
lo have foreseen that a pair of horses would 
take fright at it." It is impossible not to 
sympathise deeply with the plaintiff, and I do 
not express an opinion commending the manner 
in which the excavation was left open, but for 
the reasons already given, I am forced to the 
conclusion that the defendants are not in law 
responsible for the damage caused to the plain- 
tiff. There must be judgment for defendants 
with costs. I may add that between the case 
of Murray v. Eatt Londan Municipality and 
the present one there is no analogy, and that 
although I did not take part in that judgment, 
I concur in the conclusion and reasons for that 
decision. 

From this judgment the plaintiff now 
appealed. 



The Attomey-Geneial (Mr. Sohreiner, Q.C., 
with him Mr. Searle, Q.C.), for the appellant! 
after stating the facts : In East London 2l£ftni' 
cipality V. Murray the same contract And the 
same point were in issue as in the present oaae 
and the Municipality was held liable. II 
Murray's Case was good law then the appellant 
must succeed in this case. The defendants are 
a statutory body and their liability most be 
ascertained by the powers conferred on them. 
As to those powers, see Act 23 of 1880, section 
36. 

It is no answer to the plaintiff's claim that 
the work was not done departmentally . It would 
be a monstrous state of the law if a public body 
could escape liability by the employment of an 
independent eontractor who might be a mere 
man of straw. But the contract entered into 
between the Town Council and Ford shows that 
the latter was not an independent contractor 
(see clauses 5, 6, and 10 of the conditions^, and 
also the provision as to thd contractor bein^ 
bound to indemnify the Council from all claims 
arising from damage in the event of accidents 
to persons, cattle, horses, &c. 

There was no contributory negligence on the 
part of the plaintiff, who was justified under 
the circumstances in jumping from the cart as 
he thought his life was in danger, and there is 
evidence to show that if he and Miller bad 
remained in the cart it would have fallen into 
the excavation. 

The following authorities were cit<:d and 
discussed: Pendlebnryy. Greenhdlgh{\ Q.B £>., 
36); Taylors. Greenhalffk {9 A.h„ 487); IHfry 
Y.AsfUon (1 Q.B., 314); Cowley v. JVewmarJk^ 
Local Board (L.R., App. Cases (1892), 24o> ; 
Borough of Bathurst v. McPherson (Li.R.. 4, 
App. Cases 266) ; Bower v. Pete (1 A.B.D., 3i) ; 
F<>tf^(9,2, 8. 9, 2,12). 

Mr. Rose-Innes, Q.C. (with him Mr. Webber) 
for the Town Council : The first point in this 
case is the legal one whether even if there was 
negligence on the part of the contractor the 
defendant Council is liable. There is not much 
authority in the R.D. law on the su^jeot. Xt 
is clear, however, by that law, as by Bng^liskh 
law, that a master is liable for the delicts of 
his servants in the course of their employment. 
Voet (9, 4, 10). But with regard to delicts com- 
mitted by those who stand in some other rela- 
tion to a pater familiat than that of servants, 
liability does not attach in the same way. Vo^ 
(9, 3, 1), Potior on Obligations (Pt. 1, eL, 
note 121), says that those who have another 
under their authority are liable for the delicts 
of such person when it was in their power to 
prevent the act but not otherwise. 



47 



VMt (9, 2, 12) ifl somewhat to the same effect. 
He eays that they are only liable when they 
might and ought to hare prohibited the act 
and did not do sa 

From these authoritiee one is justified in 
inferring that the Butch law agrees with the 
Engliah on the general rule that where a 
lawful act is committed to the chaige of an 
independent contractor the employer is not 
liable for the contractor's torts in the course 
of the work. See the exceptions to this rule 
in VnderkiU on lortt (p. 65). 

It is clear upon reading the contract that 
Ford must be looked upon as an independent 
contractor. He was dealing with the Council 
at arm's length and was in no sense of the 
word in their employment. 

The Municipal Clerk of Works was in the 
position of an architect. The work was to be 
done to his satisfaction and payments were to 
be made on his certificates. If unsound work 
were done he could order it to be reconstructed, 
and he could under the authority of the Council 
order alterations from the plans. These are 
powers generally given to an architect, but 
they do not prevent a builder from being an 
independent contractor. But then it may be 
said that the Mayor had power to compel the 
dismissal of improper workmen. That does not 
alter the case, it does not make the Council 
responsible for the torts of workmen who up to 
that time had not acted improperly. That 
power was conferred upon the Mayor to provide 
against bad workmanship. See Rvdie v. L. 4' 
N,W. Railfvay Co, (L.R. 4, Ex., 244). 

With regard to the indemnity clause that 
was pat in for safety sake. It does not alter 
the leffal position of the Council. The indemnity 
was only necessary if the Council was legally 
liable, the fact of their stipulating for an 
indemnity does not fix them with liability. See 
Thomjfson on Negligence (Vol, II. p. 739) cited by 
Jones J. in Murray's Ccae. The contractor or 
his foreman had to be in daily attendance, so 
that we contend that Ford occupied under the 
agreement the position of an independent con- 
tractor, and that there was no obligation on the 
Coancil to interfere with the daily details of the 
work. 

Happoeing that to be so we next come to inquire 
whedier any duty was by law imposed upon the 
Coancil which the contractor did not perform, 
and which therefore the Council would be 
liable for. That duty is imposed either by 
common law or by statute, and there are English 
eases on both. As an instance of duty by 
common law, see Twrry y. Azktoniy Q.B D., 314) 
as an instance of statutory liability, see Qray v. 
^JUn (5 B. ^ S., 970). |n th^ li^tter case the 



statute which gave A, the authority to open the 
roads expressly provided for filling them up in a 
certain way. A, did not fill up the roads in the 
manner required by the statute and was held 
liable for the consequences— contractor or no con- 
tractor. But what statutory duty is imposed on 
the Council in this case 1 See Act 23 of 1880^ 
section) 86. The Council has the power to 
construct and alter the roads, not the duty or 
doing so but only the power. See Partridge's 
Case (4 Juta, 300.) But if they do any work 
the duty is cast upon them of seeing that the 
work is properly done so as not to injure others, 
therefore if in executing these alterations they 
had done them badly they might be liable. 
But they are not compelled to do alterations 
with their own staff. They can entrust the 
work to a contractor and there is no duty on 
them with regard to the capacity or prudence 
of the contractor's workmen. No English case 
can be quoted which goes to that length. The 
act which the Council did was perfectly 
lawful and they are therefore not responsible 
for the acts of the contractor. See BUis v. 
Sheffield Qas Co, (2 E. & B., 767). See also 
WeJifare v. Brighton Railway Co, (L.B. 4, Q.B. 
693). 

If the Court should be against us on the first 
point then the mtrits of the case must be 
discussed, and we must then consider the ques- 
tion as if the Council had undertaken the work 
itself. 

What are the facts proved, the road was 38 
feet wide, the culvert already existed with a 
fall of several feet. The Council desired to 
widen the road and therefore to enlarge the 
culvert. The barrels of cement with sail over 
them took up 3 feet, the stones near the exca- 
vation occupied 6 feet, the trafiic did not go 
within 6 feet of the excavation, so that there 
was a space of about 25 feet left for the trafiic. 
Where was the negligence? It could only be 
in respect of one of three things: (1) The 
excavation, (2) the stones, (8) the cement barrels. 
Now the excavation can be dismissed, it was in 
no way the cause of the accident* The cart did 
not fall into it and the plaintiff jumped out 
after he had passed it. See plan. It may have 
frightened the plaintiff, but so would a lamp- 
post there or an iron railing. Then was it the 
stones and cement ? It is impossible to repair 
any road on a large scale without taking 
up some part of it and depositing rubbish 
or stones upon it. These stones extended 
5 or 6 feet into the road, and they were a guard 
to the culvert if any person was coming the 
opposite way to what the plaintiff went. Now 
what is the proper test to apply in deciding 
whether placing stones there fimounted to 



48 



negllgenoe, and thifl applies equally to the 
matter of the cement barrelB. Negligence Is 
the omission to do what a reasonable man 
would do, or it is the doing of which a reason- 
able man would not do. A man is not expected 
to guard against what a reasonable man would 
not expect to occur. Bee Pollock, C.B., in 
Greenland v. Chaplin (6 Bxch., at p. 248). 

Applying that rule, could anyone have foreseen 
that placing stones or cement at a distance of 
6 to 7 feet from the ordinary traffic marks would 
cause any accidents during daylight? It is 
submitted not. See Walter t. Lv eas ( 7 Juta, 1 65 ). 
The plaintiff himself did not think that the 
horse would shy at the cement barrelp, of course 
now that the accident has happened it is easy to 
be wise after the event. But could any reason- 
able man have thought that 6 or 8 barrels of 
cement would cause a horse to shy, or that if he 
did shy he would run right over the stones ? But 
supposing that it is held that there was negli- 
gence in regard to the placing stones and 
cement on the road, was the damage so connected 
with such negligence that the plaintiff can 
recoTer 7 Each case depends upon its own facts 
and some of the decisions are hardly reconcile- 
able. See Sharp r, Pofrell (h^U. 7, C.P. 263). 
Lawrence v. Jenkint (L-R. 8, Q.B. 274). But it 
is not at all clear what caused the horse to shy. 
It is assumed that it was the flapping of 
the sails, but two of the witnesses are 
▼ery clear that it was due to a piece of 
paper. The learned judge does not say that he 
docs not beliere these witnesses. If the acci- 
dent were caused by the paper could the 
defendants }ye expecfed to have foreseen this, 
and to have abstained from placing the stones 
where they were placed ? 

As to the conduct of the plaintiff, neither the 
cart nor the horse was injured, and in all proba- 
bility he would have escaped unhurt if he had 
remained in the cart. 
Very little evidence of damages was given. 
Mr. Searle, Q.G., replied. 
Cur, ad wit, 
Pogtea (March 5th). 
The Court delivered judgment. 
The Chief Justice gave judgment as follows : 
The plaintiff brought an action against the 
Bast London Town Council in the last Circuit 
Court for Bast London for damages sustained 
by him under the following circumstances : He 
was driving a horse which shied at some casks 
of cement covered by a flapping sail and lying 
within, but on one side of St. Peter*s-road. The 
horse bolted in the direction of a deep excava- 
tion on the opposite side of the road, and the 
plaintiff, fearing that the cart might be over- 
tunned into the ezcftvation. jumped out and 



alighted on some stones lying within the line <A 
traffic near the excavation. He slipped, and 
the left wheel of the cart broke his leg agminat 
a Ptone. The summons alleges, in effect, that 
the defendants were guilty of negligence in 
allowing the casks and stones to be improperly 
pi aced in the road, and in allowing an excaTa- 
tion, deepened by themselves, to remain unpro- 
tected on the very edge of the road, 
and are therefore liable for the result- 
ing damages. The defendants plead that 
the acts complained of had been oom- 
mitted by an independent contractor, and 
that, even if the defendants are responsible for 
the contractor's acts of negligence, the plaintiff 
was guilty of contributory negligence in lamp- 
ing out of the cart without necessity or jnat 
cause. The learned Judge-President, in hia very 
able and interesting judgment, supported the 
first plea, holding that theoasks had been placed 
in the road by the contractor, and that the de- 
fendants had no power of control over him. 
The judgment accordingly was for the 
defendants, and against that judgment 
the plaintiff now appeals. Under the 
contract for the reconstruction of St. 
Peter's-road, large powers of supervision 
were reserved to the defendants. They had the 
right at all times to inspect the works In pro- 
gress, and to stop the works in case the con- 
tractor refused to dismiss objectionable 
labourers. The work Itself was to be done to 
the satisfaction of the Municipal clerk of the 
works. If the contract does not specifically give 
him the power to prevent the contractor irom 
placing materials required for the reconstruction 
in the road, that power certainly belonged to 
the defendants as the body having 
control over the streets. The poesibility 
of the Council being held liable for damages, 
such as are now claimed, was foreseen, for one 
clause of the contract provides that ** the con- 
tractor is responsible for all damage to persons 
or property ariaing out of the contract-, and in 
the event of accident to persons, cattle, horses, 
sheep, or stock of any sort from insufficient 
protection, the contractor (^hall indemnify the 
Council from all claims on account thereof.'* It 
is not quite clear to me under these oircum- 
stances that the defendants are not responsible 
for the placing of the cement and stones in the 
road. But assuming that the negligent acts of 
the contractor were not the acts of the defen- 
dants, the obvious question arises, why did they 
not adopt some precautions against such 
negligent acts? I can well understand the 
doctrine that a person who employs an indepen- 
dent contractor upon works which in the 
oitliiiar^ oourse woqld eotaU i^o danger to the 



49 



pttblio, ifl not liable for inoidental injuries caused 
bythe contractor's negligence. But where, as in 
tije present case, the work is to be performed upon 
and near a public road, and it may reasonably 
be anticipated that, without due precautions, 
the safety of the public using the road will 
occasionally be endangered by the carelessness 
of the workmen, it is surely an act of negligence 
to order the work without the precautions. The 
Council might hare reserved, if they did not 
reserve, the right of pointing out the spots where 
stones and other materials were to be placed ; 
they might have made a fence to prevent the 
excavation from being a source of danger, or 
they might have adopted the alternative course 
of dosing the road whilst the work was in pro- 
gress. This latter power is expressly reserved 
to them by one of their own bye-laws (64). It 
is quite possible to conceive cases in which, by 
our law, an employer would not be legally liable 
for acts of negligence committed by an inde- 
pendent contractor, but the present does not 
appear to me to be such a case. After authoris- 
ing the reconstruction of the road without 
taking any precautions to avert dangers which 
might reasonably have been foreseen, and which 
they apparently did foresee, they cannot 
shelter themselves behind the terms of their 
contract. The causes which contributed towards 
injury were threefold ; the position of the casks 
which caused the horse to swerve, the excava- 
tion which threatened the plaintiff with danger 
to life and limb, and, as a natural result of 
these two cAUses, the plaintiff's jumping from 
the cart in order to escape the danger. The last 
of these causes was the plaintiff's own act, and 
therefore, afl I shall presently show, if it was a 
negligent act of his to jump, he is not entitled 
to relief. The learned Judge-President held 
that the ezoavation was "a necessary conse- 
quence of the work committed to Ford," the con- 
tractor. He held further, however, that the 
ivjuiy was attributable not to the excavation, 
bat to the negligence of Ford's servants in 
placing the casks on the road. It appears to 
me, however, that both causes contributed to 
the injury. The defendants' witnesses say that 
the hone shied at a piece of paper blown across 
the road, and not at the casks. Now let me 
suppose that this view is correct, and that the 
plaintiff had been precipitated into the excava- 
tion, the onfenced excavation would certainly 
have been one of the causes of the 
aoeident. It is a legitimate inference 
that if the plaintiff was justified in 
jumping from the oart^ the excavation was the 
eanseofthe accident. I can find no authority 
in our law for the view that if two separate 
contributed to an injury no one can be 



held responsible. Nor does it appear that such 
is the law of England. Pollock (on Torts, p. 406) 
says : " It seems to be a question of fact, rather 
than of law, what respective degrees of connec- 
tion, in kind and degree, between the damage 
suffered by Z and the independent negligent 
conduct of A and B will make it proper to say 
that Z was injured by the negligence of A alone, 
or of B alone, or of both A and B. But if this 
last conclusion be arrived at, it is now quite 
clear that Z can sue both A and B." If, in the 
present case, the plaintiff can sue Ford for the 
negligent placing of the casks in the road, it 
does not follow that he is debarred from the 
right of suing the defendants for their negli- 
gence in authorising the conversion of a shallow 
and sloping embankment adjoining the road 
into a steep and deep excavation. The difficulty 
in cases of this kind arises from the use of the 
term " proximate " cause,, for of two 
successive causes only one can be strictly 
proximate. The term seems to have 
been borrowed in English law from one 
of Bacon's maxims, but I have not found it used 
in the Roman -Dutch law. The true test of 
liability for causing harm must after all be 
whether or not the harm complained of is such 
as a reasonable man should have foreseen as 
likely to happen. Applying that test the 
person who improperly placed the casks in the 
street may be liable, but his liability would not 
exculpate the person who improperly made the 
excavation if he, on his part, ought to have 
foreseen the danger of persons or animals fall- 
ing into the excavation. It is true that the 
plaintiff did not fall into the excavation, but if 
there was a real danger which a reasonably 
prudent man, impelled by the instinct of self- 
preservation, would naturally seek to avoid by 
jumping from the cart, the injury occasioned 
by his so jumping out would be attributable to 
the existence of the excavation. In this view 
of the case the really important question is 
whether the plaintiff was guilty of 
contributory negligence, but before I con- 
sider it I wish to remark that the learned 
Judge- President has somewhat misunderstood 
the decision of this Court in Walters v, Lftcas 
(7 Juta, 162). The servant of the defendant in 
that case had placed one bundle of wood— and 
not tw(> bundles as stated by the judge— in the 
veld about a yard from the road, and not " on 
the highway " as understood by the learned 
judge. The Court held that "the bundle of 
wood resembling as it did the bushes near which 
it was placed would not be calculated to frighten 
ordinary horses properly managed, and the 
placing it there cannot be looked upon as such a 
negligent act as to attach liability for the 



50 



damage." The deolBion is certainly not an 
authority upon the question whether, if the 
bundle had been improperly placed on the road 
near to a dangerous part of the road, the 
defendant would have been liable. In the pre- 
sent case the flapping sail which covered the 
cement probably frightened the horse. But for 
the horse being so frightened, the danger from 
the excavation would not have arisen. It may 
well be, therefore, that those responsible 
for the position of the casks are liable, 
but it does not follow that those who 
are responsible for the unprotected ex- 
cavation are free from liability. The excavation 
was authorised by the defendants, and although 
immediately abutting on the high road, it was 
left unfenced. Might not persons of average 
competence and knowledge have foreseen the 
consequence which has ensued ? Horses will 
occasionally swerve to the right or to the left of 
a road without any negligence on the driver's 
part. The deeper an excavation is on the side 
of a road the greater Is the danger to the 
traveller who uses it, and the greater the danger 
the more inducement there is to avoid the 
danger by every available means. If the effort 
to avoid a danger is made without reasonable 
cause, the person injured has no remedy, 
because of his contributory negligence ; but, as 
was remarked by an American judge in Brings 
v. Union-gtreet Rmhcay (148 Mass., 72), 
"one should not be held too strictly 
for a hasty attempt to avert a suddenly 
impending danger, even though his effort is ill- 
judged." In the case of Heffer v. Colanial 
Qovemment, decided in this Court in 1880, the 
executors of a person who had been killed in 
jumping against a lamp-post out of a moving 
train, recovered damages from the Government 
for the injury which caused his death. Owing 
to a defect in the points, the train went tem- 
porarily off the line near the Wynberg Railway- 
station. Those who remained in the train 
escaped unhurt, but the jury having found that 
there was no contributory negligence on the 
part of the deceased, the Government consented 
to judgment for the amount of damages 
awarded by the jury. As remarked by Pollock 
in his woA on Torts, " that which appears the 
best way to a Court examining the matter after- 
wards, and with full knowledge, is not neces- 
sarily obvious even to a prudent and skilful man 
on a sudden alarm." In the present case, the 
Court below has not expressly found 
that there was no contributory negli- 
gence on the plaintiff's part, but I 
gather from the judge's reasons that he does 
not impute any blame to the plaintiff. The 
plaintiff himself says : " When I saw in my 



opinion that there was no chance of avoiding m 
tumble into the excavation by cart and horse I 
considered it right to jump." A lad who was 
with the plaintiff at the time says : '* When we 
got to tbe bottom of the decline the horse took 
fright at the casks, and bolted straight towards 
the hole. Plaintiff did his utmost to check, the 
horse, and as he neared the hole I jumped out to 
the left, as I was afraid of falling into the hole. 
This was a little before we got to the excavation. 
When I turned round I saw plaintiff lying on 
the ground holding his leg. It was absolutely 
necessary to jump out to save ourselves." A 
mason who was working in the excavation says 
that its depth that day was nine feet, and ita 
breadth nine to ten feet, that at this depth it 
ran up against, and to the road, and that there 
was nothing to protect it. He adds that he aaw 
the plaintiff's cart come rushing past very close 
to the culvert, throwing some of the earth into 
the culvert and four inches from the hole iteelf. 
This he ascertained afterwards from actual 
measurement. "The left wheel," he aaya, 
"struck the building earth, which was hard, 
and lay there and slightly tilted the cart in 
the direction of the excavation. ... I think 
if the men had been in the cart when it 
passed the hole and canted up where it struck 
the stone, it would have fallen into the hole, 
going as it did." One the defendants' wit- 
nesses says that he thought the plaintiff jumped 
out to avoid an embankment, which the cart 
would pass after passing the excavation, but 
this view finds no support from the rest of the 
evidence. Holding then, as I do, that the ex- 
cavation, in its UD fenced condition, was a source 
of real danger to persons lawfully using the 
road, that but for the excavation iJie plaintiff 
would not have jumped from the cart, and that 
in so jumping the plaintiff only did what a 
person of ordinary nerve and presence of mind 
could reasonably be expected to do. I am of 
opinion that the defendants, who authorised the 
deep excavation and ought to have foreseen the 
danger, are liable for the resulting damages. T he 
evidence as to the amount of damages sustained 
is very meagre, but upon the whole I am of 
opinion that judgment for £250 with costs in 
this Court and in the Court below woud meet 
the justice of the case. The appeal must be 
allowed accordingly. 

Mr. Justice Buchanan : In this case, which 
comes on appeal from the Circuit Court of 
East London, the plaintiff alleges that the de- 
fendants, the Municipal Council of East Lon- 
don, were repairing and constructing the St. 
Peter's-road, within the Municipality, and that 
in breach of their duty to carry on all operations 
on a road left open for trafi&c in a mfinn^ 



51 



consistent with the safety and protection of 
peTBons passing along the said road, they 
negligently and carelessly placed seyeral casks 
of cement with a loose sail over them on one side 
of the road, and dog a deep hole or excavation, 
and placed a heap of stones near said hole on 
the other side of the road, the said excavation 
not being fenced oif in any way, and the sail 
upon the casks of cement not being properly 
secared or fastened ; that by reason of the said 
carelessness and negligent acts of the defen- 
dants, the plaintiff's horse, drawing in a cart, 
in which plaintiff was driving, was, on coming 
«p to the said casks, suddenly frightened by 
reason of the said sail flapping, and swerved 
and ran away with the cart directly towards the 
excavation and stones, whereupon the plaintiff, 
to save himself from being precipitated into the 
said excavation, which he saw no chance of the 
cart escaping, jumped from the cart^ and in 
doing so fell against the stones, and had 
his leg broken in two places, wherefore 
the plaintiff claimed £2,600 damages. 
The defendants pleaded to plaintiff's claim : first, 
a general denial; secondly, that they had 
entered into a contract for the work to be done 
to the road with one Ford, who was an indepen- 
dent contractor, and free from all control by the 
defendants, and that the acts and omissions 
complained of, if they were actually done and 
caused, were done and caused by *he said Ford, 
independently of the defendants, and without 
any interference or control by the defendants ; 
thirdly, contributory negligence, inasmuch as 
the pUintilE, without any necessity or just cause, 
jumped out of his cart on to the stones. Judg- 
ment was given for the defendants with costs. 
This third plea of contributory negligence 
appears not to have been relied upon in the 
Circuit Court, and is not supported by the 
evidence, nor is it discussed in the judgment of 
the presiding judge. As a fact, the cart was 
not precipitated into the excavation, but the 
opmion of plaintiff's brother-m-law, who was in 
the cart and jumped out, and escaped unhurt, as 
well as of a mason who was at work at the time 
on the works, was that if the men had not 
jomped out the cart and horse would have 
toppled over. Under the circumstances detailed 
in evidence I do not think blame can be held 
to attach to plaintiff for acting as he did. 
The learned Judge-President, in his reasons, 
»tates that the defences were ; firsts that the 
plaintiff was the unfortunate victim of a pure 
wcident; and secondly, that if there was 
liability anywhere it was in Ford, who was an 
independent contractor. As I read his lordship's 
Mc^ent» he finds for the Council on both of 
thflw defences, though he seems to rely more 



on the second ground than on the first. It is 
clear, however, that the learned judge does not 
hold that the Council is protected simply 
because it has employed Ford to carry out the 
alteration in the street in question. His lord> 
ship states that although he did not take part 
in the judgment of the Eastern Districts Court 
in the case of Mwrray v. Eatt London Muni' 
eipaUty (9 E.D.C. Rep., 66), yet he concurs in 
the conclusion and reasons for that decision. 
That was a case of another accident at this 
same place during the carrying out of the worl^ 
under the same contract, where a person who 
had at night walked into the excavation in 
question was awarded damages for injuries sus- 
tained. According to the head-note to that case 
the Eastern Districts Court laid it down that 
when a municipality contract for the execution 
of a work which necessarily involves danger, it 
is their duty to contract that the work shall be 
done in such a manner and under such con- 
ditions as to protect the public against the 
dangers necessarily involved; and failure so 
to contract makes the Municipality liable 
for damage caused by the absence of such 
precautions, even if the work be entrusted to a 
contractor under conditions which make him an 
independent contractor. I am prepared to 
adopt this statement of the law in so far as it 
applies to the case then under consideration, 
and as justifying the Eastern Districts Court in 
holding in that case that when a Municipality 
contracts for the repair of a street; and it is 
obvious from the nature of the work that they 
must have had in view the probabilities of 
excavations being made in the public street, 
and the contract does not bind the contractor 
to fence those excavations or light them up at 
night, the duties of fencing and lighting remain 
in the Municipality, and they are liable for 
damages caused by the absence of these. In the 
case now under api>eal the learned Judge-Presi- 
dent states that " the evidence proves that the 
excavation was a necessary consequence of the 
work committed to Ford, and that inasmuch as 
there was nothing in the contract providing for 
the protection of the public during the course of 
the construction of the new culvert which 
necessitated the construction of this excavation 
at the side of the road, I think defendants 
might perhaps have been liable in law if during 
the night time the injury had been caused in 
consequence of no proper indication by lights or 
otherwise of the presence of the excavation." 
But his lordship was of opinion that the 
unprotected excavation couldnot here be blamed. 
In his opinion the proximate cause of the 
injury was the act of Ford and his servants ia 
placing the cement casks on the side of the road, 
and thus causing the plaintiff's horse to shy, and 



52 



thftt the temporary placing of these caskfl on the 
edge of the road was an act not oontemplated 
by the contract with Ford, and, therefore, that 
there was no negligence in the Council in not 
providing against it. A great deal may fairly 
be said for the view that where an independent 
contractor is employed, the Municipality should 
be held answerable only for injuries caused by 
acts which reasonably can be considered as 
necessary or likely to be done in carrying out 
the works contracted for. Where I am inclined 
to differ from the learned Judge-President is in 
the view I take of the connection between the 
excavation and the injury suffered. I am in- 
clined to look at the work being done for the 
Council on this particular road as a whole. The 
casks of cement and the stones were as necessary 
as was the excavation itself, and I cannot see 
my way to limiting the accident to the presence 
of the casks only. The immediate and proxi- 
mate cause of tiie injury suffered by plaintiff 
was the stones, but I look on the casks, and 
especially upon the excavation, as contributing 
to the accident. But for the casks and 
flapping sail the horse might not have shied ; 
but for the unprotected excavation the plaintiff 
would not have jumped, and but for the stones 
he would not probably have suffered the injuries 
complained of. Supposing that instead of 
jumping from his cart the plaintiff had sat still, 
and been precipitated into the excavation, as the 
witnesses say he would have been, the excava- 
tion would then undoubtedly have been the 
proximate cause of injury. There was a real 
danger caused by the unprotected excavation, 
and it was this danger that the plaintiff 
attempted to avoid by his jumping from the 
cart. According to the mason employed on the 
works, where the excavation touched the road, it 
was sheer nine feet down, and about nine to ten 
feet wide. The excavation at this depth ran up 
against and to the road, and there was nothing 
to protect it. This, it seems to me, should have 
been provided against by the Municipality, and 
their not having done so is convincing proof of 
negligence. If there is negligence from which 
injury results, the fact that the injury was 
caused not at night but at daytime, cannot 
relieve the Council from liability. For these 
reasons, in my opinion, the plaintiff is entitled 
to succeed in his action. As to damages, it 
would have been more satisfactory if they had 
been assessed by the Court of first instance. 
However, the evidence is before us upon which 
that Court would have had to found its verdict. 
Looking at the severe injuries suffered, and the 
pain caused and pecuniary loss entailed, I think 
that £260 would be a fair amount to award to 
plaintiff. The appeal should therefore, in my 



opinion, be allowed, and iudgment entered for 
plaintiff for £260 with costs, as well on appeal 
as in the Court below. 

Mf. Justice Upington : I am also of opinion 
that the appeal should be allowed, and judg- 
ment entered for the plaintiff. The learned 
Judge- President, in laying down *' that inas- 
much as there was nothing in the contract pro- 
viding for the protection of the public during 
the course of the construction of the new 
culvert, which necessitated the construction of 
this excavation at the side of the road," the 
defendants were thereby relieved from liability 
from accident in the day-time, appears to me to 
have given far too wide a construction to the 
legal exemption which has been held to apply in 
such cases. The common law and statutory 
liabilities of the defendants cannot be so lightly 
shaken off, and, in fact, the defendants seem lo 
have held the same view when they made pro- 
vision in the contract— as against the contractor 
— ^f or damage arising from insufficient protection. 
On the question of negligence I am also clear. 
In my opinion the roadway was allowed to be 
kept in an improper state. When such an 
excavation was being made in a roadway 
which was not very broad, and having 
a fall, great care should have been taken to pro- 
tect the public. Instead of so doing, no pre- 
caution was taken. Cement casks covered by a 
loose flapping sail were permitted to be placed 
dose by the old wall, stones requisite for the 
bnilding of the culvert were thrown down dose 
to the excavation, and — mirabUe dictu — the ex- 
cavation itself was left wholly unfenced. The 
danger of leaving the excavation unprotected is 
clearly shown by the admission of Mr. Ford, the 
contractor, who says the stones were placed 
there for the " protection of traffic to prevent 
its tumbling into the hole '* ; yet, according to 
Mr. Lloyd, the defendants* clerk of works, on 
the afternoon of August I, he saw no stones on 
the east side of the culvert^ and none 
opposite the culvert. Such were the 
oiroumstances which the plaintiff in his 
lawful uses of the roadway had to cope with. 
The result was that his horse shied at the flap- 
ping sail, and bolted in the direction of the 
excavation. If the roadway had been clear, the 
plaintiff would probably have escaped unin- 
jured, but in jumping from the cart he came in 
contact with the loose stones, and was thereby 
thrown under the wheel of the vehicle. In my 
opinion, that was the direct consequence of the 
negligence of the defendants. As to contribu- 
tory negligence, I think there was 
none. The plaintiit was in imminent 
peril when he jumped. The right wheel 
was not only within four inches of the mouth 



58 



of the ezoaTaiion, but it aotunUy threw back 
into theexoavation some of the exoavated clay 
which had been thrown up, while the left wheel 
coming in contact with one of the Btones, tilted 
the Tehicle up so dangerounly that if there had 
been an occupant of the vehicle all would have 
been precipitated into the excavation made by 
Uie defendants. Under these circumstances, I 
think the plaintiff reasonably obeyed a natural 
impulse to preserve his life, and, therefore, he 
cannot be said to have been guilty of contribu- 
tory negligence. 

[Appellant's Attorneys, Messrs. J. 6c H. Reid 
k. Nephew; Respondents* Attorneys, Messrs. 
Fairbridge, Ardeme & Lawton.] 



m THE ESTATE OF NICOLAAS ( 1896. 
ALBSBTU8 JANSEN VAN VUUBBN. I Feb. 12th. 

Mr. Molteno applied for the appointment as 
proviBional trustee of William Ernest Davis. 

Mr. Graham opposed, and applied for con- 
firmation of the election of F. W, Neser. 

The Chief Justice said : It does not apj;>ear to 
me to be quite hopeless to expect that there will 
be another election in case the Court orders it, 
because the two candidates were equal as far as 
numbers were concerned, but one had the 
majority in value. The Court will therefore 
order a fresh election and in the meantime 
appoints both Mr. Neser and Mr. Davis as pro- 
visional trustees, with power, in case there 
should be again a failure to elect a trustee, to 
administer and liquidate the estate. Costs of 
this application to come out of the estate. 



SUPREME COURT. 



[Before Sir J. H. de Villibrs, K.C<M.G. (Chief 
Justice), Mr. Justice Buchanan, and Mr. 
Justice Upington, K.C.M.G.] 



BEOINA V. blauwveboi. (FebflPsth. 

Magistrate's jariadiction — Theft— Conviction 
on separate indictments. 

Where a prisoner wcm charged on iioo indid- 
ments toiih the theft of different article$, 
found guiUiy, and sentenced to separate 
terms of imprisonmeni on each indictment, 

The Court, on review, quashed the conviction 
on ^u second indictment. 



The Chief Justice referred to this case which 
had come before him on review from the Resi- 
dent Magistrate of Carnarvon. 

The accused was charged on two indictments 
with the crime of theft. 

The first charged him with stealing two ribs, 
portion of the slaughtered carcass of a sheep, 
the property or in the lawful possession of 
Samuel Malgas. The second charged him with 
stealing a g^un, powder, a pair of trousers, 
&c., dec. 

The prisoner was found guilty on each indict- 
ment, and sentenced to separate terms of im- 
prisonment. 

The Chief Justice, after stating the facte, said : 
The prisoner should have been charged on 
one summons only, otherwise the prisoner might 
have been charged with the theft of each article 
and convicted, and so the jurisdiction of the 
Magistrate be indefinitely extended. 

The conviction on the second summons will 
be quashed, that on the first will be con- 
firmed. 



In re " BBNE8TINB.'' 



f 1896, 
I Feb. 13th. 

General average— Bill of lading — York and 
Antwerp Rules — Sale of cargo — Interdict. 

Interdict granted to restrain the master of a 
ship from selling part of the cargo for the 
purpose ofpayirtg expenses of r^fKtirs in a 
port not being a port of refuge ; there being 
no prima- facie givtmd for holding that the 
damage to the ship, v^ich was occasioned 
by the leakage of sulphtiric ctcid improperly 
conveyed, to the knowledge of the mastei*, in 
iron drums, coiwtituted a loss for tcihich con- 
tribution must be made by the owners of the 
rest of the cargo who, under their bills of 
kuiing, had agreed to be bound by the York 
and Antweip Rules of 1890, 



This was an application (by certain consig- 
neee) for an interdict restraining the sale of cer- 
tain cargo on board the German barque Ernestine, 
lying in the Docks at Cape Town, and insured 
in the Marine Insurance Company, London, and 
in other companies. 

The facts (as deposed to by the applicants) are 
briefly these : The Bmeetine sailed from Ham- 
burg for South African ports about July, 1994, 
and reached Table Bay early in October last. 
Upon discharging her Cape Town cargo, it was 
discovered that the vessel had sustained damage 
by reason of the leakage of some sulphuric aoid 



54 



which had been stowed between decks in iron 
drams. In order to complete her voyage and 
earn her freight, the captain of the Ernestine, 
acting on behalf of the owners of thevesttel, had 
certain repairs effected to her, and incurred 
various other expenses, for the payment of which 
(notice having been given to the owners and 
consignees) he advertised for an advance of 
money on bottomry of the ship and her freight, 
but without success. 

Thereafter he obtained a certificate from the 
Imperial German Consul of Cape Town, 
authorising the captain to hypothecate the 
cargo and obtain money on bottomry of the 
ship, freight, and cargo. 

Upon being informed of the issue of this cer- 
tificate, and upon observing the advertisements 
calling for tenders on bottomry, the petitioners 
protested against their cargo being hypothecated 
for the benefit of the ship and freight. 

The captain having failed to obtain bottomry, 
advertised an intended sale of part of the cargo 
for Thursday, the I4th inst. Against chis step 
the petitioners protested. 

They alleged that the value of the ship was 
not more than £3,500, whereas the cargo (ex- 
clusive of the Cape Town cargo) was valued at 
least at £8,000, and that the freight still payable 
was £383 lis. Sd. 

That should the proposed sale take place, the 
petitioners feared that their cargo would be 
sold at less than its real value, and that owing to 
the liabilities already incurred by the captain 
on behalf of the owners, the vessel, if attached 
and sold, would not fetch a sum sufficient to 
recoup them for losses, cost, and expenses. 

The petitioners further alleged that they were 
prepared and had tendered to accept delivery of 
their cargo here upon payment of distance 
freight, subject to their rights against the vessel 
for detention and other damages. 

The captain and agents of the vessel claimed 
that the cargo was liable to contribute to the 
expenses of repairing the vessel by way of 
general or particular average or otherwise, 
whereas the petitioners denied any such 
liability. 

The prayer was for an interdict restraining 
the captain from selling the cargo, or, should it 
seem fit, to grant the petitioners an order com- 
pelling the captain to make delivery of the 
cargo here upon payment of distance freight. 

There was evidence to show that when the 
sulphuric acid was shipped at Hamburg the 
captain raised objections to receiving it on 
the grounds that there would be considerable 
risk in placing the acid below deck. The 
charterers' agents thereupon produced a 
number of manifests of cargo of other vessels 



showing that in those cases sulphuric acid 
shipped in casks of a similar construction had 
been stowed below deck. They explained that 
the nature and construction of these casks 
were such that it was safe stowage to put 
them below deck, and they insisted moreover 
that the ship was bound to take these casks 
in the place where they wished them to be 
stowed, as they were not asking more than was 
in accordance with the Police Regulations, and 
that therefore the terms of the charter party 
bound the ship to take them below deck. 

The acid was accordingly shipped and the 
rate of insurance upon the ship was altered, 
and a higher premium paid on account of the 
possible risks to her from carrying the acid. 

It was stipulated in the bills of lading 
that general average, if any, was to be regu- 
lated and paid according to the York and 
Antwerp Rules of 1890. 

Rule 10 is as follows : 

(a) When a ship shaU have eniei'ed a poH or 
place of refvge w shall huve returned to her port 
or place of loading in consequence of accident^ 
saci^ifioCf or other extraordinary circtimgtornoe*^ 
which render that fiecessary for the common 
safety, the expenses of entering such port or 
place shall be admitted as general average^ and 
when she shaU hare sailed thence ttiih her 
original cargo, or apart of it, the corresponding 
expenses of leaving sfieh port or place, conse- 
quent upon such entry or return, shall Uhewistt 
be admitted as general average, 

(b) The cost of discharging cargo from a 
ship, whether at a port or place of loading, 
call or refuge, shall be admitted as general 
average, wJien the discharge was necessary 
for the common safety, or to enable da/mage 
to th"' ship, caused by sacrifice or aceident 
during the voyage, to be repaired, if th^ 
repairs were necessary for the safe pi'osecutimt 
of the voyage, 

CcJ Wheyiever the cost of discharging cargo 
from a ship is admissible as general average, 
the cost of reloading and stowing such cargo 
on board the said ship, together with aU storage 
sharges on such cargo, shall likewise be ao admit' 
ted, but when the ship is condemned or does not 
proceed on her original voyage no storage 
expenses incurred after the date of eondemnation, 
or of the abandonment of the voyage, shall be 
admitted as general average, 

Mr. Rose-Innes Q.C. (with him Mr. Benjamin), 
in support of the applicatioo : Under certain 
circumstances the master of a ship may hypo- 
thecate the cargo, but he can only do this as the 
agent of the owners of the cargo {MacLaehlan, 
pp. 154-5). and when he is driven to it for the 
I benefit of the cargo. In re Avanti Savoia (2 



55 



Bheil, 830 ; 9 Juta 442). Ajid wheneyer poflsible he 
must first notify his intention to the owners of 
the chTgo (.Maude and Pollock, Vol. I., pp. 564-9). 
If he does not do that then the hypothecation 
is Yoid even as against the person who bona fide 
lent the money. Re " Fomiica " (2 Juta, 197). 
It is essential to give notice to the cargo owners 
in order that they may instruct the master, who 
is aeting as their agent, what to do. They may 
instmot him to land the cargo or may advance 
money themselves {Kay, Vol. I., p. 664). In the 
present case they have given him instructions— 
they have told him to land the cargo here. 
(See correspondence.) By English law full 
freight would be payable {Kay, Vol. I., p. 298), 
bat in the present case the law of the flag 
governs. Qaeta/no and Maria (7 P.D., 137), and 
by tiiat law distance freight is all that could be 
claimed. See L€wndeit p. 423. The position 
taken up by the master is that the cargo is 
liable for the pro rata share of expenses 
incurred, and he will not deliver the cargo 
unless that liability is acknowledged. The 
expenditure was necessitated by the damage 
sustained by the ship, not by the cargo (See 
surveyor's report). The caigo does not appear to 
have been damaged very much, and the damage 
to the ship was caused by stowing the acid below 
deck. To see the folly of such procedure one 
need only read Dr. Marloth's report* The 
damage to the ship was not caused by perils of 
the sea (Amould. Vol. II., p. 742. ) The protest 
says that there was heavy weather, but that 
oould not account for the great escape of acid. 
As soon as there was a little leakage the drums 
became corroded from the outside. This was 
the fault of stowage and was therefore not a 
general average loss. It was not a sacrifice for 
the preservation of the entire venture. Even if 
the leakage had been caused by a peril of the 
sea the cargo would not have to contribute to 
repairs unless the loss was a general average 
loss. Every repair necessitated by a peril of the 
sea is not necessarily a general average loss 
{Amould, Vol. II.. pp. 839—841) and if not a 
general average loss how can the cargo be 
called upon to contribute 7 Something is tried 
to be made out of the fact that the captain was 
ordered by the charterers to place the acid 
ImIow the deck, but we have nothing to do with 
the charterers. It is sometimes a nice point 
to decide whether a master signs for charterer 
or for owner. It all depends upon the charter- 
party and knowledge of the shipper. {Sorvtton 

* Dr. Marloth'in hia report ezpresRed surpribe that 
the vemel had ever reached it8 destination, 8o great 
in his opinion was the risk that had been incurred in 
•to wing iron drama of sulphuric acid below deck 
iri^l^o^ being properly pocked in ohalk, Bbp 



(p. 266) ; Sandeman v. Scurr. L.R. (2 Q.B., 86) ; 
(Alston V. Herring, 11 Exch., p. 822). 

It is submitted that under the circumstances 
in thie case the master cannot sell the cargo 
and that the applicants are entitled to the 
interdict praj'edlor. 

Mr. Searle, Q.O., for the master: In this 
case the law of the flag prevails, and under 
German law the owners of the cargo are liable 
to contribute. See Pritchard'f Admiralty 
Digest (Vol. I. 169--165 and 604^^609). The 
*'Afigugt" (L.R.P.D. (1891). p. 828). 

The applicants received due notice and were 
made fully acquainted with state of the vessel 
and of the expenses which were being incun^. 
He cited ffall and Another v. Janton (24 
L.J.Q.B., N.S. 97); Simonds and Loder v. 
White (2 B. k. C, 805) ; Lowndet (397—106 and 
624) ; MacLachlan (p. 712). 

The Chief Justice referred to the York and 
Antwerp Rules of 1890, which were incorporated 
in the bills of lading. 

Mr. Rose-Innes, Q.G., in reply: These rules 
are founded on the general principles of the 
law of average. But the owners of cargo 
cannot be held liable to contribute to a loss 
caused by the negligence of the charterers or 
of the Master. 

The Court granted the application. 

The Chief Justice said : It is common cause 
that during the voyage of the Oerman barqne 
Ernestine from Hamburg to the Cape con- 
siderable damage was done to the ship by the 
leakage of sulphuric acid from iron drums 
which had been stowed beneath the deck. 
That, however, was not the cause of her coming 
into Table Bay, for part of her cargo was con- 
signed to Cape Town and the damage was not 
discovered until after the Cape Town cargo had 
been removed It was then found that the 
leakage had penetrated to and damaged the 
ship's timbers and that it was necessary to 
discharge the rest of the cargo In order to 
effect the required repairs. Notice of every- 
thing that was done by the master was given 
to the applicants, who are owners of the cargo 
consigned to Port Elisabeth, but nothing was 
said as to holding them liable for any part of 
the expenses of landing and reshipplng the 
cargo or repairing the ship. Attempts were 
made by the master to obtain the money for 
paying those expenses on bottomry of ship and 
cargo, but he failed, mainly because of the 
objections raised by the applicants. The 
master then obtained the consent of the German 
Consul to a sale of portion of the applicants* 
cargo for the purpose of defraying such expenses 
as should remain unpaid after money had been 
raised 09 bottomry of ship and freight. Xlie 



56 



object of the present application is to prevent 
snch Bale and the question to be determined is 
whether the expenses incurred in Cape Town 
constitute a loss for which contribution by 
general average must be made. There can be 
no doubt that, if the ship had been British 
and, the applicants' bills of lading had con- 
tained no stipulation to the contrary, no 
contribution could have been claimed from 
them. But the Ernestine is a German ship 
and the parties to the bills of lading agreed to 
be bound by the York and Antwerp Rules of 
1890, and we must therefore proceed to consider 
whether under those rules general average is 
claimable. The only rules which can in any 
way apply to the present case are those num- 
bered 2-10. (His lordship after reading the rules 
continued.) Now it appears to me that none 
of these rules are applicable. The Ernestine 
did not come into Table Bay as a place of refuge 
nor did she return to the Bay as the port of 
loading. After part of the cargo had been 
discharged the damage was discovered and it is 
by no means clear that the vessel could not 
have gone on to Algoa Bay without first 
executing repairs in Table Bay. Then again 
the question arises whether the damage was 
caused by an accident during the voyage. There 
was a leakage from iron drums, which ought not 
to] have been received on board without the 
necessary procautions against damage, and the 
damage caused by such leakage cannot be 
considered as a loss for which the innocent 
owners of the rest of the cargo are to be called 
upon for contribution. The objection to the 
owners of the ship being entitled to general 
average becomes still groater when it is borne in 
mind that danger was foreseen from the 
sulphuric add, and that additional insurance 
was paid by reason of sulphuric acid being 
taken in iron drums on board. 

The owners of the Port Elizabeth cargo ought 
not in principle to suffer for the negligence of 
the master, and I do not find anything in vhe 
York and Antwerp Rules of 1890 which, under 
ciroumstances like the present, imposes a 
liability on them for general average. As the 
master may still desire the question to be 
determined by action I wish to say no moro at 
present. It is sufficient for the purpose of the 
motion now before the Court to say that no 
prima'faeie ground exists for holding that the 
applicants are liable to a general average 
contribution, and their application to restrain 
the sale of the cargo must therefore be granted 
with costs. Their lordships concurred. 

[Applicants' Attorneys, Messrs. Van Zyl & 
Bnissinn^; Respondent's Attorneys, Messrs. 
Fairbridge, Ardeme 6c Lawton.] 



VAN DBB WSffTHUIZBN V. OOHBN ( 1895. 

BBOTHBSB. (Feb. IStfa. 

Magistrate's Court — Summons — Exception — 

Damages. 

Where, in a summons in a Magistraie's Court 
for damages for tlie wrongful taking cmd 
selling of the plaintiff's goods, it sti^fidently 
appears that the amount claimed is ifUended 
to represent the vaUie of the goods, it is no 
ground of exception that the summons ought 
to have claimed delivery of the goads icith 
jan alternative claim for damages. 



This was an appeal from a decision of the 
Resident Magistrate of Hay, in an action in 
which the present appellant (plaintiif in the 
Oourt below) sued Herman GoAien and Jacob 
Cohen, trading as Cohen Bros., for £16 damag^ea. 

The summons alleged that Herman Cohen and 
one MoritB Cohen, acting on behalf of Cohen 
Bros., on or about the 13th November, 1894, 
removed from the farm Rietfontein, the pro- 
perty of one Hendrik van der Westhuiaen, 
certain head of cattle. 

That amongst the said head of cattle were 
four heifers, the property of the plaintiH, which 
heifers were unlawfully taken possession of by 
the said Cohen Bros. 

That Nicholas van der Westhuiaen, acting on 
the plaintiff's behalf, claimed from the said 
Cohen Bros, the said four heifers on or about 
the 28th November, but the heifers were not 
restored to their rightful owner, the plaintiff, by 
the said Cohen Bros. 

That the said Cohen Bros, subsequently, on 
the 28th November, sold the said four heifere 
by public auction by their auctioneer, Qeorge 
Gie. 

That the plaii|tiff hath been unlawfully 
deprived of his four heifers by the said Cohen 
Bros., and is presently out of possession of his 
rightful property, and hath suffered damage to 
the extent of £16, which sum the said Cohen 
Bros, refuse and neglect to pay. 

Wherefore the plaintiff prays that they may 
be adjudged to pay the same, with the costs of 
this suit. 

The defendants excepted to the summons on 
the grounds that the same was vague, em- 
barratoing, and bad in law, as they are unable to 
ascertain therefrom whether they are sum- 
moned in an action for damages for treapass on 
H. ?. van der Westhuisen's farm, for unlawful 
seizure, or for unlawful possession of the cattle, 
as the circumstances and acts of unlawful- 
ness are not alleged, nor is it even alleged that 
the cattle were taken or ren^ovecl withoi^t con- 



6? 



Bent and permiasion of the plaintLS (if his pro- 
perty), and, therefore, no ground of action is 
diflcloeed. 

Further, if the cattle, as alleged, are owned by 
plaintiif the action is wrongly instituted, and the 
plaint ought to be for delivery of the cattle, 
and an alternative claim for damages. Act 20 
of 1866, schedule C ; Ackerman v. Adams 
(I Juta, 17) ; Vcm der Linden, pp. 60 and 100. 

The Magistrate upheld the exceptions with 
ooets. 

The plaintiff now appealed. 

Mr. Qraham was heard in support of the 
appeaL 

Mr. Roee-Innes, Q,C., for the respondents. 

The appeal was allowed. 

The Chief Justice said: The question is 
whether the summons in the Court below gave 
a sufficient indication to the defendants of the 
real nature of the remedy which the plaintiff 
sought by his action. In my opinion the defen- 
dants had sufficient notice of the oase which 
they had to meet. After stating that certain 
four heifers, the property of the plaintiff, had 
been uken poflsession of and sold by the 
defendants, and that the plaintiff had 
suffered damage to the extent of £15, the 
summons claims that amount The first excep- 
tion to the summons was that it is embarrassing 
in not disclosing the ground of action, but this 
exception was not much pressed in this Court 
The chief objection is that "if the cattle, as' 
aUeged, are owned by the plaintiff the action is 
wrongly instituted, and the plaint ought to be 
for delivery of the cattle and an alternative 
claim for damages." But the summons alleges 
that the cattle had been sold and therefore a 
claim for delivery of the cattle would have been 
nugatory. The claim for damages can only be 
based upon the value of the heifeni, and although 
the summons does not say in distinct words, it 
is a fair inference from the summons, taken as 
a whole, that the amount claimed as damages 
is intended to represent the value of the heifers. 
Whether the plaintiff succeeds or fails in the 
present action— and this is a fair test of the 
validity of the objection— he oould not again 
sue the defendant for the value of the heifers. 
It is far better that^ upon exceptions of this 
nature, an amendment should be allowed in the 
Magistrate's Court if no prejudice can be done 
to the defendant by such a course. The case 
must be remitted to the Magistrate's Court to 
be tried on its merits, when he wiU still have an 
opportunity of allowing an amendment of the 
summons so as to remove any possible doubt as 
to the nature of the claim. The appeal must be 
allowed with costs. 

Their lordships concurred. 

I 



[Appellant's Attorney, G. Montgomery-' 
Walker ; Respondents' Attorney, Gus Trollip.] 



Re MBIRTNG'S ESTATE. 



\ 1896. 
{Feb. 13th. 

This was an application under Act 17 of 1886, 
section 11, to stay a writ of execution, pending 
the surrender of an estate as insolvent. 

The insolvent gave notice on 29th January 
that his estate would be surrendered on 16tii 
February. 

Some of his creditors levied execution, and 
the sale was fixed for twelve o'clock to-day (18th 
February). 

Mr. Molteno was heard in support of the ap- 
plication. 

The order was granted as prayed. 



SUPREME COURT. 



[Before Sir J. H. de Villdebs (Chief Justice)i 
Mr. Justice Buohakan, and Mr. Justice 
Upington, K.C.M.G.] 



PROVISIONAL ROLL. 



PBINCB, VnTTQBNT AND 00. 
LANDAU. 



. V. f 



1895. 
Feb. Uth. 



Mr. Tredgold moved for the discharge of the 
provisional order of sequestration. 
Granted. 



Ain)EB80N'B BXBCUT0S8 V. WBLOEMOSD. 

Mr. Buchanan applied for provisional sentence 
for the sum of £1,800 on two mortgage bonds, 
with interest. 

Granted. 



ABBLBOHN'B TRUffTSB V. VAK DSS WEfyrHUtSBN. 

Mr. Shlppard moved for provisional sentence 
for the sum of £60, with interest from October 
last. 

Granted. 



OOBIBBB V. EBLANK. 

Mr. Shlppard moved for provisional sentence 
for the sum of £9(^ with interest from April, 
189i, due on a promissory note. 

Granted, 



Oo 



1 



THB MA8TEB Y. MGDONALD'fi B2UECUTOB8. 

Mr. Giddy appU«d for an order oompelling 
the defendants to file accounts. 
Order granted. 

FBAfiEB V. CUKNINGHAli. 

Mr. Webber applied for provisional sentence 
on two promissory notes for £60 and £126 res- 
pectively, with interest. 

Granted. 



MARAISY. BINDBB. 

Mr. Maskew applied for provisional sentence 
for the sum of £46, with interest, being an 
amount overpaid. 

Granted. 



ADMISSIONS. 

Ex parte bobchbbdb. 

Mr. Watermeyer applied for the admission of 
Mr. James William Boroherds as an attorney 
and notary of the Supreme Court. 

Mr. Boroherds took the oath, and was duly 
admitted. 



Em paHe bussbll. 

Mr. Buchanan applied for the admission of 
Mr. Ernest Gordon Russell as circuit attorney. 

The order was granted, the oaths to be taken 
before the Resident Magistrate of Maclear. 



GENERAL MOTIONS. 



OOOK BB06. V. GOIiONIAL GOVBBN- f 1885. 

MENT. ( Feb. Uth. 

Trial — Application for postponement refused. 

Where in an action againet the Colonial Gov- 
ernment the declaratiofi had been JUed on 
the X21h November, the pleadU^gs closed on 
the 6th December J and the caee set doum for 
trial on the 28th February, 

The Court, on the application of the defen- 
damt, refueed to order a poetponement wntU 
the May Term. 

This was an application on notice to the re- 
spondents (plaintiffs in the action) that they 
would be required to show cause why the trial 
of the case, which has been set down for the 
98th instant, should not be postponed till next 
term. 

The affidavit on which the application was 
founded alleged intifr alia that certain evidence 



from Pondoland would be necessary for the de- 
fence ; that active steps were being taken tm 
collect this evidence, but that much research, 
great care, and further time would be required 
before the case could be fully placed before the 
Court : and that it would be impossible for the 
defendant to go to trial this term. 

That amongst other things evidence would be 
required as to the circumstances attending the 
execution of the documents sued upon, and as to 
native law and custom, and a number of persons 
would have to be interviewed before the neoea- 
sary evidence could be collected for the infor- 
mation of the Court. 

That the defendant did not desire in any way 
to prevent the hearing of the case at the earliest 
possible date, but that in view of the great im- 
portance of the issues involved concerning, as 
they do, the large territory of Pondoland, he 
considered that there should be ample time 
allowed for the preparation of the defence. 

The affidavit of one of the respondents* 
attorney, set forth that the declaration was 
filed on November 12 last, that the pleadings 
were dosed on the 6th December, and that in 
order to facilitate matters, application was made 
on the 12th December for the appointment of a 
commission to examine witness, which was 
opposed by the defendant and refused by the 
Court. 

That Mr. Mclntyre. one of the attorneys for 
the plaintiffs, had visited Pondoland and else- 
where for the purpose of ascertaining the 
whereabouts of the witnesses, whose attendance 
will be required in the Supreme Court in sup- 
port of the plaintiffs' case. 

That these witnesses are of many and diverse 
nationalities, languages, and positions in 
society, and include amongst their number ttie 
civilised and uncivilised, educated Europeans 
and uneducated natives, and are widely scat- 
tered about, some in Pondoland, some in Kok- 
stad, some in East London, and others in 
Griqualand East and other places in the vicinity 
of the above. That it was, therefore, manifestly 
of vast importance to the plaintiffs that the 
trial of the case should take place with as 
little delay as possible in order to avoid the 
very great risk and probability of very valuable 
and material evidence, now available, being 
entirely lost to the plaintiffs should the trial be 
long delayed. 

The deponent alleged that he was informed, 
and believed the information to be true, that a 
spirit of unrest is manifesting itself amongst 
the natives of Pondoland, and is likely to lead 
to disturbances, and that the Government have 
in oonsequence moved troops in that direction, 
and that in the event of such disturbances tak- 



59 



iiig place. It would in all probability be impofl- 
■ible to obtmin the evidenoe of many witnesses 
for the plalntiifB which is now obtainable. 

The deponent lastly said that the defendant 
Goremment was made acquainted with the 
nature, extent, and grounds of the plaintiffs' 
elftimB more than twelve months ago. 

In reply to the above an affidavit was filed by 
Mr. J. Koee-Innee, sen., denying the statements 
that a spirit of nnrest was manifesting itself 
amongst the natives of Pondoland, and that the 
Qovemment had in consequence moved troops 
in that direction. 

Mr. Sehreiner, Q.C., A.G., Mr. Juta, Q.G., and 

Mr. Giddy appeared for the applicants. 

Mr. Bheil and Mr. Webber for the respondents. 

The Court refused the application and fixed 

the 6th March for the trial. Costs to be costs in 

the cause. 

Mr. JuAtice Buchanan and Mr. Justice Uping- 
ton both expressed their disapproval of the 
statement made on behalf of the respondents, 
that a spirit of unrest existed among the natives 
in Pondoland, a statement which the learned 
judges characterised as being without founda- 
ti<m, and mischievous. 

[Applicants' Attorneys, Messrs. J. k H. Reid 
Jt Nephew; Respondents* Attorneys, Messrs. 
Tredgold Sc Co. 



IN TH4 MATTBB OF THE MINOR KATHLBBN 

JENNER. 

Mr. Watermeyer moved for authority to the 
Master to pay out to the father of the said 
minor from money to her credit in the 
Ouardiana" Fund a quarterly allowance to 
provide for her education. 

Order granted in the terms of the Master's 
report. 



IK THE MATTBB OF THE MINOR MARIA HUGO. 

Mr. Shippard applied for authority to 
the Board of Executoi*s, as administra- 
tors of funds accruing to the minor 
out of the estate of her grandparents, to pay 
out a sufficient sum to enable her to proceed to 
the South African Republic for the benefit of 
her health under medical advice. 

Order granted in terms of the Master's 
report. 



BRrnCNBACH V. SMUTS'B EXBCUTOB8 AND 



of the nullity of a will) by reason of his failure 
to proceed with the action within the time 
prescribed by the rules of the Court. 
The Court granted the order as prayed. 



Mr. Shell moved for leave to the defendant 
executor to sign judgment against the plaintiff 
IB the suit instituted by him (for a declaration 



ATMORE v. CHADDOOK. 

Mr. Innes, Q.C., moved for the appointment 
of Mr. Tredgold as ourator ad litem to repre- 
sent the minor Sarah C. E. Atmore. a child of 
the defendant by her former husband, Edward 
Atmore, in an action in respect of the estate 
of the said Edward Atmore. 

Order granted, with power to intervene as co- 
defendant. Costs to be costs in the cause. 

Order granted, expenses to be borne by the 
applicants. 



Re CLARK'S ESTATE. 



/ 1896. 
\ Feb. 14th. 

Miuors' portions — Intestacy — Widow — 

Security. 

Where it was clearly for the beneJU ofmimore 
that ihe estate of their father, who had died 
intestate^ and who had been married in com- 
mumty, sJumid not he immediately realised 
to pay their portions^ the Court allowed their 
mother to remain in posssssion of the estatey 
she undertaking to find security for payment 
of ihe minors' shares, and to educate and 
maintain them at her own expense. 



Mr. Shell applied for authority to 
the executor dative to allow the assets of 
the said estate, consisting of farms and 
stock in Griqualand East, to remain in posses- 
sion of the surviving widow to be worked for 
the benefit of herself and the minor children, 
on eondition that she shall give security to the 
satisfaction of the Chief Magistrate for the due 
payment of the minor's portions. 

The facts are briefly, these : 

John Clark died on 29th June, 1893 .- intestate. 
He left landed property, stock, &c., in Umzimkulu 
district, Griqualand Bast. There were seven 
major children of the marriage nnd three minors ; 
and this was an application by the executor 
dative of the estate, and by the widow (married 
in Natal in community of property) and by 
the major children, praying that the executor 
might be allowed not to realise the estate to 
pay out the claims of the widow and hers, 
on the ground that a forced sale would under 
the circumstances mean a serious loss, but that 
if the estate were kept intact it would steadily 
increase in value. The major children agreed 
to make over to the surviving spouse for liff 



60 



their shares of the estate so far as they were 
coDoemed. The surviving spouse also undertook 
to provide proper security for payment (at any 
time fixed by the Court) of the minors* shares ; 
and to educate and maintain the minors at her 
own cost. 

The Chief Magistrate, Griqualand East, 
having certified that this course would be 
advantageous to the minors and the estate 
generally, 

The Court ordered in terms of the Chief 
Magistrate's report. 

[Petitioners* Attorneys, Messrs. Van Zyl Sc 
Buisdnntf.] 



IN THE INSOLVENT ESTATE OF 
THOMAS C. SLABBEB. 



S 1896. 
I Feb. 14th. 



Mr. Tredgold moved for authority to 
the Master of the Supreme Court to 
call a meeting of creditors for the election 
of a new trustee in place of the late 
James H. Steer, originally elected, for the said 
estate, in case tiie Court should be of opinion 
that the estate should be represented m certain 
action instituted by the said Slabber for the 
recovery of an amount claimed from the estate 
of his wife's deceased father. 

Order granted, 

STBKNKAMP'SBXECUTBIXy. WIBSB. f PeW^ith. 

Waiver of rights — Marriage in commanity — 
Sale of property — Consent id ignoraoce of 
rights— Trespass — Damages. 

Where a woman by virtue of her marriage in 
community had become entitled to a half- 
share wi certain landed property^ and 
without being fidly acquaifited with her 
rights consented to a sale of the property 
by her ch^ldreny who were ervtOM to the 
other half, 

Held that, there had been no waiver of her 
rights^ and that she was entitled to succeed 
in a/n adiion for trespass and damages 
agai7vst the purchaser^ who was inoccupation 
of the land. 

This was an action of ejectment and damages 
instituted by Hendrika Christina Steenkamp, 
in her capacity as the executrix dative of the 
estate of the late Johaunee Benjamin Steen- 
kamp, against the defendant, Andries Tobias 
Wiese. 

The declaration alleged that the plaintiff, who 
is at present miMTie4 H» o^e Snyman, and is 



duly assisted by him in this action, is the 
executrix dative of the lat-e Johannes Benjamin 
Steenkamp, to whom she was during his life- 
time married in community of property ; that 
the defendant is a farmer residing at Ylakkraal, 
in the district of Victoria West. 

That in or about the month of September, 
1837, one Lucas Petnis Steenkamp, senior, here- 
inafter called the testator, and his 
wife, Isabella Aletta Steenkamp, here- 
inafter called the testatrix, to whom he was 
married in community of property, executed a 
joint will by which each of the spouaea 
appo inted the survivor, together with the chil- 
dren of the marriage, to be his or her heirs, and 
in or about the month of March, 1848, the 
testators duly executed a codicil to their will, 
in termfi of which they bequeathed their farm 
Abuispoort, situated in the district of Victoria 
West, to their two sons, Johannes Benjamin 
Steenkamp and Lucas Petrus Steenkamp, for 
the bequest price of 20,000 guilders. Cape value. 
The testator died in the year 1858, without having^ 
revoked or altered the said will and codicil, and 
the testatrix adiated under the said will and 
codicil, and remained in possession of the said 
farm and thereafter entered into a second 
marriage with one De Villiers. 

Upon the adiation by the executrix the said 
Johannes Benjamin Steenkamp acquired a 
vested right to half of the said farm upon pay- 
ment of 10,000 guilders, being h\&pro rata share 
of the bequest price, but subject always to a 
life usufruct in favour of the testrix. 

The said Johannes Benjamin Steenkamp 
married the plaintiff in or about the year 1871, 
and there were born as issue of the said mar- 
riage one son named Lucas Petrus Steenkamp, 
and one daughter (now married in community 
to one J. B. van der Westhuysen). Both are 
still living and are majors. 

In the year 1886 the plaintiff's husband, 
Johannes Benjamin Steenkamp, died intestate, 
and the plaintiff was thereafter duly appointed 
executrix dative of his estate, and received letters 
of administration accordingly. The plaintiff 
thereafter entered into a second marriage with 
one Snyman, and is duly assisted by him in 
this action as far as need be. 

The testatrix, the said Isabella Aletta Steen- 
kamp (afterwards De Villiers), died during the 
year 1893. 

The plaintiff is desirous of taking possession 
of the half share of the farm Albuispoort, and 
of dealing with and dit>tributing it according to 
law. She has paid to the executor dative of the 
estate of the testator and testatrix the sum of 
10,000 guilders, being £260, and on the 9th 



61 



Norember, 1894, the said ezeoator transferred 
to her, as exeoutriz of her late husbaad, the 
half-share of the farm aforesaid. 

The defendant is in occupation and possession 
of the said half -share, and wrongfully and un- 
lawfully refuses to give up possession thereof to 
the plaintifE, and wrongfully claims that he is 
entitled to the ownership by virtue of certain 
agreements which he alleges that he entered 
into with the children of the said Johannes Ben- 
jamin Steenkamp. 
The plaintiff claimed : 

(a) An order that she. in her capacity as 
executrix, is entitled to realise the said farm, 
and to distribute the proceeds between herself 
and the heirs ab integtato of her husband accord- 
ing to law. 

(i) An order compelling the defendant forth- 
with to quit and deliver up the possession of the 
said farm to her. 

(e) Payment of the sum of £500 as damages 
by reason of the defendant's unlawful occupa- 
tion of the said farm. 
(<i) Further relief and costs. 
The defendant specially pleaded that : 
Prior to the month of March, 1888, 
the plaintiff's son, Lucas Petrus Steenkamp, 
and son-in-law, Johannes Benjamin van der 
Weethayaen, with the knowledge and consent 
of his wife, offered to sell to the defendant the 
said half-share of the said farm which had 
been partitioned by the said testatrix. A. de 
Yilliers, and half ,which farm she had trans- 
ferred to her son, Lucas Petrus Steenkamp. 

The defendant communicated the said offer 
and the price, which was more than the value 
of the full said half of the farm, to the plaintiif 
and her husband, the said Snyman, to whom 
she was then married, and the said plain- 
tiff and her husband then represented to 
the defendant that she and her husband had 
waived and surrendered any rights they might 
.Jiave in the said half-share in favour of the 
said children of the plaintiff, and that the said 
son and aon-in-law were entitled to the whole 
of the said half -share, and were entitled to sell 
it to the plaintiff, and relying upon and induced 
by the said representations, and with the full 
knowledge and consent of the plaintiff and her 
husband, the defendant, on the 1st March, 1888, 
bought the said half -share in the said farm 
from the Raid son and son-in-law, who sold it to 
the defendant. 

Thereafter the defendant paid the price 
agreed upon to the said son and son-in-law to 
the knowledge of the plaintiff and her husband, 
and by means thereof tney purchased a farm, 
of which the plaintiff and her husband have had 
(he use, occupation, and enjoyment. 



Upon the death of the said testatrix, A de 
Yilliers, the defendant took possession and 
occupation, as he was legally entitled to do, of 
the said half -share to the knowledge of the 
plaintiff, her husband, and the said son and son* 
in-law, and without any let or hindrance, and 
remained in possession of the said half -share 
without let or hindrance until the present 
action. 

Wherefore the defendant prays that the plain- 
tiff's claim may be dismissed with costs. 

The replication joined issue. 

Mr. Rose-Innes, Q.G., and Mr. Graham for 
the plaintiff. 

Mr. Juta, Q.C., and Mr. Webber for the 
defendant. 

Mrs. Hendrika Christina Snyman said her 
former husband was Johannes Benjamin Steen- 
kamp. She resided in the Carnarvon district. 
Was married to her former husband in com- 
munity of property. In 1887 and 1888 she was 
living at Hout Kop. In 1888 she had no know- 
ledge that she was to receive anything under the 
will of the old Steenkamps. She had two children 
by her first husband and five by the second. The 
"koop brief" was signed on the 1st March, 1888 ; 
as to an agreement of her son, Lucas 
Steenkamp, and son-in-law, Van der West- 
huyzen, to sell part of the farm, Krants 
Vogelvley, to Wiese for the sum of £1,500, 
witness remembered in the beginning of 1888 
Wiese coming to the farm with the two young 
men. Wiese said he had bought the ground 
from them for £1,500, of which he would pay 
down £500 and the other £1,000 after Mrs. De 
Villiers's death. Witness expressed her dis- 
approval because the children thus sold their 
farm in the old people's lifetime. She told 
Wiese he had betrayed her children, and that 
the end of the matter would be a law suit. Wiese 
said he would not interfere with the old lady, 
and that at her death the children would come 
into the property. Her husband was present at 
the interview. Witness never saw a *'koop 
brief." The £600 was paid by Wiese in 
February, 1889, to the two boys. Witness never 
received any portion of the money. They did 
buy a farm with it (Sandpan), which 
witness used with her husband, but 
only for nine months. They paid rent 
for its use— the sum of £15. Beyond that they 
received nothing. Never told Wiese that she 
and her husband had given up all their rights 
in the farm and that the children could have 
them all. There was a lawsuit in February, 
1893. Before the end of 1892 she had no idea that 
she had an interest in Abuyspoort at all. Never 
saw her mother-in-law's will till her death. In 
consequence of what her husband told her she 



62 



omused inquiries to be mftde through Mr. 
ComeliuB, and as a resolt she paid half the 
bequest price (£260) into the estate of old Mrs. 
Steenkamp, and had taken transfer ; and her 
desire was to sell the place at public auction 
and to deal with the proceeds as executrix. The 
half-share she valued at ^.000. 

Crofis-examined by Mr. Juta : In 1886 the 
farm Abuyspoort was divided into two parts. 
Her son and son-in-law went there, and Wiese 
was present. Peter Wiese was her brother-in- 
law. She told them to take Peter Wiese with 
thera to sec that the division was properly effected. 
She always thought the ground belonged to her 
son and son-in-law. Did not know she had any 
right to it then. She was then living at Qoed- 
kop with her husband, Snyman. Knew Wiese 
was buying the ground belonging to the two 
children, but was against it. The uncle got 
£2,000 for the half, and Wiese only wanted to 
Kive £1,500 for the remaining two quarters of 
the children. In February, 1888, Wiese lived 
ten hours from witness. Did not know if the 
two boys went to Wiese to offer to sell, 
but her son said Wiese wanted to 
buy the ground. Witness's husband (Sny- 
ann) was at that time insolvent. Became 
insolvent after she married him, and they were 
at the time in poor circumstances. The two 
boys wanted to buy Sandpan, but witness was 
not anxious for it as she and her husband had a 
home already. However, as soon as Sandpan 
was bought witness went with her husband to 
live there. Did not know there was a mortgage 
of £500 on Sandpan and that Wiese 's £600 was 
to pay this off. She filed an account in her 
husband Steenkamp 's estate. She was very 
careless at the time. In that account she said 
that on the death of Mrs. De Villiei's her husband 
would be entitled to half the property. Could 
not say anything about it as she was very 
oareless. 

Mr. Innes said that if Wiesu's contract was 
right he would have a quarter share. The wit- 
ness's right came in by virtue of her marriage 
in community with Steenkamp. 

The Chief Justice said that it was evident 
from the account that she knew her husband 
would be entitled to half the property. 

Cross-examination continued : Wiese came to 
her and her husband and had a conversation 
about the sale. Did not come to ask their 
consent to the sale. It was before the " koop 
brief was made out. Did not think Wiese 
journeyed for ten hours to come to them about 
it. Had no recollection of saying anything to 
Wiese about her sons wanting to buy Sandpan. 
£new nothing about the second agreement that 
was drawn up, but heard that in October, 1892, 



Mrs. De Villiero sold some property to one Ras 
Leenberg. A messenger from Wiese first told 
witness o^ that. Knew that her sons would hare 
to pay the £500 back to Wiese if they oould not 
give Wiese the ground. 

The account signed by witness in her husband 
Steenkamp 's estate was here produced. Witnefls 
did not remember who brought the account to 
her for signature, but her agent was old Horsk 
since dead. He did not explain the account to 
her, and she did not know what she was signing. 
He might have stated that after the death of 
witness's mother-in-law half the farm would 
belong to her husband Steenkamp and that her 
son would be entitled to a quarter, but she did 
not know anything about it. Did not know in 
whose handwriting it was. 

Mr. Juta handed in the account in the insol- 
vent estate of witness's husband Steenkamp, 
showing a deficiency of over £3,000. 

Re-examined by Mr. Innes : At her first hus- 
band's death she was twenty-three years old. 
Lived at Beyersfontien. 

Mr. Innes said it was significant that who- 
ever sent her the account to sign had written in 
pencil where she was to sign. 

Witness continued that she could not read 
English. The account was written in English. 
In 1888 she did not know she was entitled to 
any property in consequence of the marriage 
in community with her husband. When Wiese 
called on her he was on his way to another plaee 
about the " koop brief.'' 

Lucas Petrus Steenkamp, son of the plaintifl' 
deposed that he was one of those who signed 
the *'koop brief." Shortly before it was signed 
there was a drought, and he trekked with his 
sheep to Mr. Wiese's farm. They first came to 
talk about the sale through Wiese asking wit- 
ness if he would sell his place. Subsequently, 
his brother-in-law came and Wiese offered £1,600 
for both their rights. Wiese told them that 
half of Abuyspoort belonged to witness and his 
brother-in-law. It was decided to write out a 
" koop brief," but it was not done on the spot 
as it was an'anged to meet at Kaalplats. At 
Kaalplats, however, it was not done as there 
was no "scholar "there to doit. His mother 
did not like the sale, and it was afterwards 
decided to go to Smuts, the schoolmaster, at 
Kleinbeyersf ontein. On the way to the latter 
they had to pass his mother's place. His uncle, 
Yan der Westhuizen, was with them. Witness 
was there when the conversation about the sale 
took place between Weise and witness's mother. 
His mother expressed great dissatisfaotion with 
the sale, and said it would end in litigation. 
They, however, went to Kleinbeyersfontein on 
the same da^ (Ist March, 1888), and the '* koop 



m 



\inti"wMfiigiLed. ^T^it^nees Drent on with the 
Mkmipiieoi wbmt liis mother said« because 
k Tttted to l>u.y 8sii<li>fikxi. Witness was 
tffartT.two years of age tlion- His mother did 
MtwiQthim to Bell lyuX lie did. Sabseqaeotly 
be betrd his xmcle claimed the whole 
hm and vritneee 'wen't to "Weise and told him 
ttiftt other people were claiming the ground, bo 
be offered to Wieee to drop ^100 on the sale, and 
make UD mother docament by which he should, 
lithe groiuxd -were found not to belong to 
witnesBindliis brother-in-law, repay to Wiese 
Us £3(0 witb. 6 per cent, interest. That doca- 
ment was ngned in Sept em ber, 1 888, and in 1892 
athird document was signed. Wiese had sent 
him a Douoe tiiat Xtas bad boiif^ht the farm, and 
that witQ^a mnat ipfiue summons against Ras. 
WttiiJeEB,bi» broiber-in-law, and Wiese came 
downtogether to Gape Town, and witness told 
WiMs that if tbey loet the case Wiese would 
baTe to pay the co^ts. Wiese, however, said he 
was not obUged to pay the costs of the lawsuit, 
and ao it was arranged to draw up the third 
doeomcat. by which, if they lost the case, Weise 
afaonld pay the oosta, and they in return agreed, 
if they won the caae, to forego the £1,000 still 
by Wiese under the " koop brief /' 
won the case, but witness never 
bad received his witness's expenses. Witness 
swd to Wieoe, ''You have got the ground 
for nothing.'^ meaning for £500. He valued 
property which Wiese had got for £500 at 
£2,500 to £3,000. Witness had meanwhile 
found out that his mother was entitled to a 
balf-ahare, and he told Wiese so. Wiese 
■aid witness was crasy to say so. The £500 was 
paid by Wiese in 1889, and witness used the 
moae y to buy the farm Sandpan, for which he 
gave £900. His mother and step-father occu- 
pied Sandpan. paying £16 rent for nine months, 
aad his father-in-law also had towork on the farm. 
Croes-examined by Mr. Juta : In 1886 the 
property was divided, and after that witness 
entered into negotiations with one De Yilliers 
to sell his riiEhts. De Yilliers oif ercd to pay 
Ml^SOO for half the farm AbuyspooH. That was 
the same property as Wiese afterwards bought 
for £1,500. In the action against Ras, witness 
aad h's brother-in-law claimed the half of 
AhnTODoort. 

2$. Cornelius, agent acting for the plaintiff, 
that in the end of 1892 her present husband 
ft communication to him which resulted 
IB eorrespondence between Messrs. Van Zyl and 
Bmaainne and witness regarding the plaintiff's 
r%ht0L Wiese had entered into possession of 
the half of the farm acquired by him. It would 
be wortii from £2,500 to ^,000, and a fair rental 
for ii would be about MBO a year. 



His Lordship informed Mr. Innes that the 
defence might now be proceeded with, as there 
was a sumcientj»f'«4iuz/a#i0 case for the plaintiff. 

A. T. Wiese, the defendant, said he took pos- 
session of tne half of the farm on the death of 
old Mrs. De Yilliers. Had since built a large 
house on it and effected improvements. The 
value of the improvements was £500, and they 
were nearly finished when in November last he 
received a summons. That was the first he 
heard of any attempt to eject him. The half 
of the farm was sold to him by the two young 
men. The reason the " koop brief '' was not 
signea on the spot was because witness should 
first hear fi'om Lucas's mother that she was 
satisfied with the sale. He accordingly went to 
her and explained the conditions of sale. She 
was entirely satisfied, as witness was to pay 
£600 down, and she said that would be a timely 
sum to get them out of difficulties. He also 
went to old Mr. Westhuizen to acquaint him of 
what his son proposed to sell. 

The Chief Justice : Did she know she had 
rights — that she was entitled to half the farm ? 

Witness : I thought she did not fully know her 
rights. 

The Chief Justice : Then why did you not gat 
her to sign the " koop brief " ? 

Witness : J never thought of it. 

Examination continued : Would not have 
bought the property from the young men unless 
the mother had consented. Had his doubts 
about it, because he knew she had been married 
in community. He had paid £600 altogether 
for the half of the farm. Did not get the 
plaintiff's consent to the two variations in the 
"koop brief." They applied the £500 to the 
purchase of Sandpan. [Witness here gave 
similar evidence to that of Lucas Steenkamp 
as to why the variations from the original 
agreement were made.] The first variation 
was that he was to bear the brunt of any action 
in consideration of the sum of £100, and the 
second variation was that witness was to run 
the risk of the costs of the action against Ras. 
In consideration of this he was to pay nothing 
over and above he £500 already paid by him, 
being therefore exempted from paying the other 
£1,000. Thus, if they won the action he would 
have the property for £500, and if they lost it 
he would have to pay the law costs. They won 
the case. 

Andries Wiese, son of the defendant, said that 
he heard the plaintiff consent to the young men 
selling all these rignts. 

Mr. Leenberg said that he went to the plain- 
tiff as messenger from Mr. Wiese, and she said 
that she was glad her son would get the £500, 
as be would be able to acquire Sand pan. 



64 



Mr. Innes was not called upon. 

Mr. Juta addressed the Court for the defence. 

Judgment was delivered for the plamtifE. 

The Chief Justice said : In this case it seems 
perfectly clear to me that at the time when the 
defendant purchased the half of the farm 
Abuyspoort from Van der Westhuizen and 
Bteenkamp, both the purchaser and the sellers 
belieyed that the sellers were entitled to sell the 
full half, and I am satisfied also that when the 
consent ef Mrs. Steenkamp as the mother of 
Steenkamp and mother-in-law of Van derWest- 
huizen was asked, that she at that time firmly 
believed that the two were entitled to the whole 
of this half-share. The only circumstance that 
came out in the evidence tending to the con- 
trary view, is the fact that in the year 1869 the 
plaintiif signed a liquidation account, from 
which it appears that one-half of that farm 
belonged to her husband's estate. It appears, 
however, that this fact was not even known to 
the counsel for the defendant, and it was only on 
inquiry made by the Court that the liquidation 
account was produced, and if that had not been 
produced there would not have been a tittle of 
evidence to show that Mrs. Steenkamp knew 
anything whatever of her rights under the will 
of her father-in-law. Kow, it must be remem- 
bered that this was in the year 1869, when she was 
quite a young woman of twenty -three years of 
age. In that year this account was signed. It was 
written in the English language, and I am per- 
fectly satisfied that she does not understand 
English. It is also cleai that it was sent to 
her with a pencil note showing where she had 
to sign. I am perfectly satisfied that she did 
not know at the time the full purport of the 
document. Now I quite agree with what 
Mr. Juta has said as to the danger of holding 
that a person is not bound by a document signed 
by him, the principle is that every person is 
bound to know the full force and effect of docu- 
ments which he signs ; but if all the circumstances 
show that the person did not so understand them 
and if there is no reason to believe that great 
blame attaches to that person for not fullv 
understanding what he has signed, then the 
principle referred to would not apply ; and in 
this case even the defendant himself is boimd to 
admit that at the time he consulted the 
plaintiff about the sale she did not know what 
her rights were. That was his own admission 
in the box; when the question was put 
to him he said he believed she did 
not know. If she had known at 
that time that she was entitled to 
one-half of this farm by virtue of her mar- 
riage in community of property, I am perfectly 
o«rtain that she would not have consented to this 



sale. I leave out of the question her denial. 
It is true that we have the evidence of the 
defendant's son that she did know, but it is 
unpleasant to have to decide on questionB 
of credibility, and therefore I prefer to accept 
the defendant's own evidence. But on that 
evidence there is not sufficient to show that 
she had given consent, as executrix, so far 
as her own half -share was concerned. 
So far as her sons' share is concerned, 
however, it would be hard to deprive 
the defendant of the rights he acquired under 
his agreement. It is an extraordinary 
thing, that if the consent of the plaintiff was 
required in the first instance, that she was 
never consulted at all in the arrangements made 
subsequently. On the first agreement, which is 
highly favourable to the sons, she was consulted, 
but when afterwards further arrangements were 
made, which considerably modified the original 
purchase note, the mother is in no way con- 
sulted, but with the two young men alone the 
arrangements are made. Now, if she did not 
at the time fully understand that she was the 
owner of one-half of the fans, I do not think 
that what passed between her and the 
defendant can deprive her of her rights. 
Moreover, we must bear in mind that she 
was at the time acting in the capacity of 
executrix of her husband's estate, and that 
as executrix she was bound to administer 
the estate faithfully and in the interests 
of the estate. It would have been entirelj 
against the interests of the estate if, knowing: 
that the whole of this property belonged to the 
estate, she had allowed the sons, who were 
entitled only to one-half of this pro- 
perty, to dispose of the whole and 
pocket the whole of the purchase prioe. 
The very fact that she allows the sons to 
pocket the whole purchase price, and does not 
take one penny for herself out of the estate, 
satisfies me that she did not know of her rights. 
Nothing has taken place in the nature of a 
waiver, or "estoppel," which prevents her now 
from claiming, at all events, occupation of one- 
half of the farm. In fact, the defendant had no 
right in the first instance to go upon the farm. 
She, as executrix of the estate, was entitled to 
one-half of the farn., and she had a right to 
prevent the defendant from going on the land 
at all. But it would, as I said be- 
fore, be inequitable now to deprive him 
of the occupation of at least one-half of the 
farm. He must, however, pay for the occupa- 
tion of the other half for the full year he has 
been in occupation, and it is only a moderate 
estimate to say that the sum of £60 shall be 
paid for this. Judgment will therefore be given 



65 



for the plaintiil for £60 damages. The Court 
will declare that the defendant Ib not entitled to 
thenae or oooupatlon of more than one-half 
share of the farm Abuyspoort, transferred to the 
plaintiff in her capacity as executrix of the 
estate of her late husband, and that he is not 
entitled to claim the rights under the 
purchase by him from the son and 
BOD-in-law until he shall have paid to 
the executrix the sum of £126. She has 
paid £260 out of her own pocket, it is said, to 
the estate of old Steenkamp for the purpose of 
obtaining this transfer. Of course she was 
bound to pay this amount in her capacity of 
executrix, and therefore in that capacity she is 
entitled to recover one-half of the amount from 
the purchaser of the sons' rights. As to costs, 
the plaintiff has recovered part of herdaim, 
and there has been no tender by the def endant^ 
and therefore I think the defendant must pay 
the coats. 

At the request of Mr. Innes,the Court allowed 
plaintiff's expenses as a witness. 
Their lordships concurred. 
[Plaintiff's Attorney, C. C. Silberbauer; De- 
fendants' Attorneys, Messrs. Van Zyl & Buis- 
sinn^.] 



SUPR EME COU RT. 



[Before Sir J. H. DB Villisbs, K.C.M.G. (Chief 
Justice). Mr. Justice Buchanan, and Mr. 
Justioe Upinoton, K.C.M.G.] 



PABKIN T. LIFPSBT. 



f 1896. 
I Feb. 16th. 

Mr. Searle, Q.C., on behalf of the defendant, 
applied for extension of time in which to file 
his plea. 

Mr. Innes, Q.C., for the plaintiff. 

The Court granted an extension until the 
ttnd instant^ costs of the application to be costs 
in the cause. 



BBOINA V. NIOBTHLING. \ Peb^ith. 

Theft— Act 35 of 1893— Evidence sufficient 
to justify conviction. 

This case came on review from the Resident 
Msgistrate of Frieska, and was now argued on 
bshalf of the prisoner. The prisoner was chai'ged 
with the crime of theft of stock, in contraven- 
tion of Act 86 of 1893, in that he did on or about 



the 14th day of January, 1896, kill a sheep, the 
property or in the lawful possession of one 
C. F. Benadie. The accused was found guilty 
and sentenced to twelve months' hard labour. 
The facts appear sufficiently from his lordship's 
judgment 

Mr. Benjamin was heard for the prisoner. 

Mr. Giddy, for the Crown, was not called on. 

The conviction was sustained. 

The Chief Justice said : The appellant in this 
case is a white fanner, but we must apply to 
this case the ordinary principles which we apply 
to other cases in which prisoners are charged 
with thefts of stock. If the evidence against 
him is conclusive, the fact of his being a 
European farmer must be left out of sight 
altogether. Now, the evidence goes to show 
that the owner of the sheep, accompanied by a 
boy, was in search of some missing sheep : that 
they went by different routes to the place where 
their sheep had last been, and that there both 
of them found a dead sheep whose throat had 
recently been cut. The blood was warm, and 
there was every sign that the sheep had only 
just been killed. About six paces from the 
spot they found the footmarks of a 
horse which had been standing there, and 
in the immediate neighbourhood they foimd 
certain spoors. Well, the horse seems after- 
wards to have left the place, and they followed 
the footmarks of this horse till ultimately they 
came upon the accused at a place called 
Mackay's Put, and there the owner of the sheep 
compared the measure he had taken of the 
spoor vrith the prisoner's boots and he found 
that they corresponded exactly. He did not 
take the breadth, hut the length corresponded 
exactly. Both witnesses say that the spoor 
which they saw had been made b}*^ the boots 
which this man wore. Now it struck me that it 
might just be possible that the prisoner was 
passing the spot, and seeing the sheep lying dead 
got off the horse to see what the cause of the 
sheep's death was. But the difficulty in adopting 
this theory is two-fold. In the first place the 
prisoner himself did not set up this defence. 
If the prisoner himself had said : " I was on the 
spot and got down from the horse to see why the 
sheep was lying there," there might have been 
something in it, but he denied having been on 
the spot at all, and said the boy who said he saw 
him there was a liar and that he had not been near 
the place. That is the first objection to the 
theory, and the other is that no other spoor was 
found in the neighbourhood but the spoor of this 
white man. Well, on evidence such as this 
coloured men are continually convicted, and 
there is no reason why a different conclusion 
should be i^rrived at in the case of the 



66 



prifloner. And there Ib this further eir- 
oumstanoe, that the priBoner himself, when 
the suggestion was made to him to pay for the 
damage, at once consented to pay. No doubt 
afterwards he said he was not guilty, but it 
seems a strong admission of guilt on his part to 
consent to pay. An innocent man, who had 
only got down to see what the cause of the 
sheep's death was, would never have consented 
to pay for the sheep, with the death of which 
he had nothing to do. So I am perfectly satis- 
fied that the man killed the sheep. The next 
question is with what object. Was it mere 
malicious damage, or with an intention to 
appropriate the sheep to his own use ? WelL 
the presumption would be that the object 
was to appropriate the sheep. That presump* 
tion should be rebutted in some way or other, 
and it seems to be extremely likely that after 
he had killed the sheep he saw the owner of the 
sheep and the boy at a further distance coming 
towards him and rode off; and that if he had 
not seen anyone coming, he would have appro- 
priated the sheep. Under these circumstances, 
I think the Court would not be justified in 
reversing the decision of the Magistrate, who 
had all the witnesses before him and is the best 
judge of the facts of the case. It is sug- 
gested now that the agent who repre- 
sented the prisoner thought it was only 
a preliminary examination, and did not 
defend the case as he would have done had he 
known it was a trial case, but it appears to me 
that the agent was very shrewd throughout the 
case. His cross-examination of the witnesses 
for the prosecution, at any rate, was as long as 
the examination itsell The prisoner himself 
did not tender evidence, and it is too late now 
to say that the agent did not know the circum- 
stances under which the case was brought before 
the Magistrate. The appeal must be dismissed. 

Their lordships concurred. 

[Attorney, G. Montgomery- Walker.l 



SUPREME COURT 

[Before Sir J. H. db Villibbs (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
Upington, K.C.M.G.] 

BEOINA V. VYFBB AND JAPTHA. {ygb^^th 

The Chief Justice mentioned these cases, which 
came on review before him as judge of the week 
from the Special Justice of the Peace at Laings- 
burg, 



The first-named accused was charged with 
contravening section lO; Act 27 of 1882, in that 
upon or about the 11th day of February, 1895, and 
at or near the the goods shed of the Laingsburg 
Station, the accused did unlawfully curse and 
swear. The prisoner pleaded guilty and was 
fined £1 6s., or one month's imprisonment with 
hard labour for the first eight days, and there- 
after solitary confinement with spare diet every 
other day, subject to circular. 

The second-named accused was found guilty 
of stealing an ox-hide from the Laingsbnrg 
Station, and sentenced to pay a fine of £2, or 
one month's imprisonment, the same sentenoe 
being passed as regards spare diet as in Vyfer's 
case. 

The Chief Justice^ referring to the first case, 
said: The sentence is not in accordance with 
law, nor was it justified by the circular. The 
prisoner was sentenced to hard labour, and 
therefore could not be sentenced to spare diet 
for more than two days in each week. Besides, 
the effect of the sentence will be that on one 
of the two days immediately preceding his dis- 
charge the prisoner will have to be kept on 
spare diet. The portion of the sentenoe relating 
to spare diet must be quashed. The same 
remarks apply to Japtha's case. 



BBGINA V. ABRAHAM AND 0THEB8. {peb J^th 

This case came on review from the Resident 
Mag^trate of Clanwilliam. 

The accused. Dirk Abraham, sen.. Dirk 
Abraham, jun., April Dryer, and Qriet Buitera, 
described in the summons as vagrants, 
were charged with the crime of 
contravening section 2, Act 23 of 1879, 
in that between 1st Januaiy and 9th 
February, 1896, and at or near Riet Ylei, in the 
district of Clanwilliam, the accused did wrong- 
fully and unlawfully wander about the said 
farm Riet Ylei without visible lawful means of 
support. 

Dryer was acquitted, the other aoouaed were 
found gniilty and the following sentences passed : 
Ruiters to serve M. N. Smuts (the prosecutor), 
of Riet Ylei, for three months as fkrm servant 
at 4b. per month and food, to take effect from 
12th February, 1896; Dirk Abraham, jun., to 
serve David van ZyL of Riet Ylei, for three 
months as a farm servant, wages Ss. a month 
and food, to take effect from 13th February, 
1896 ; Dirk Abraham, sen., to find employment 
on the farm Riet Ylei within forty-eight hours. 

The Court quashed the convictions. 

The Chief Justice said : The prosecutor in the 
case. Smuts, is one of the lessees of the farm. 
The two other co-owners, named Yan Zyl, gaTQ 



6f 



mdesoetiid BAid. tliey liaci ^ven the pruonere 

psminoii to be upon tl^e place. However, the 

MigMliiite fouDkd them guilty, with the ezoep- 

tknofoDe of -them, and. sentenced one of the 

piiioiien (Bmiers^ to serve for three months ag 

ibrmsenraat nnder Snints on the farm in 

qoatkn at 4s. per naontli, tbe sentence to take 

efE«t from the 12Ui T^ebruary. Now that sen- 

teomU in direct opposition to the 11th section 

ofAet23ot 1879, wbicb prohibits a prisoner 

Imng Dui to oompnlsorjr service under the per- 

WQ at whoae instance tbe proaecution has taken 

pbce. The other prisoners were similarly in- 

de&tmed to the Van Zyls, but as they gave per- 

suaaim to the men to be upon the place, I do 

■ot tlmik they can be treated as vagrants at all ; 

for they were apprenticed to the Van Zyls, who 

were also the owners of the farm upon which 

these persons are said to have been vagrants. 

We are of opinion that the sentences must be 

quashed. 

Mr. Justice Upin^ton : I was the author of 
Act 23 of 1879, and I can only say that the con- 
vietioiia in these cases have been contrary to the 
s|rfrit and letter of the law. 



FIKN^AB V. BATTBAT. 



f 1896. 
(Feb. 18th. 

Futneis — Summons — Non-joinder - Excep- 
tion. 

P. sued R. in a Mctgisiraies Court upon a jnv- 
misaory note signed by R. and his partner 
L., 1^ UsUer being at the date of the issue of 
ifce summons domiciled in &ie S.A. RepubUCf 
and not vnthin the juri8dictio7\. 

The Magistrate sustained an exception of non- 
jomder taken by R. 

Held, on appeal, retersing the Magistrate's 
decision thai P. was justified in suing R., 
the partner tnihin the jurisdiction, 

AUock V. Du Preez fBuch. 1875, p. 130) 
followed. 



This was an appeal from a decision of the 
Besident Magistrate of Robertson in an action 
in whi^di the present appellant, plaintiff in the 
Court below, sued the respondent (defendant) 
for the Bom of £200 and interest from 2nd 
Deeember, 1890, at 12 per cent, per annnm, due 
en a pvomissory note, dated Klerksdorp, 2nd 
Ai^gnat, 1890, and signed by the defendant and 
fay his partner at that date, one Le Rouz. 

The defendant excepted to the summons (1) 
on the ground of non-joinder, as Le Eoux 
■hoold have been joined in this action as co« 
def endaak and (2) that the summons was vague 



and bad in law, inasmuch as it did not state 
that the partnership estate in the South African 
RepiAlic had been excussed, and that there was 
a deficiency. 

The evidence went to show that Le Roux, 
the defendant's partner in a business carried on 
by them at Klerksdorp at the time the note 
was signed (the partnership being now dis- 
solved), was living at present in the South 
African Republic, and not within the jurisdic- 
tion of the Magistrate. 

The Magistrate granted absolution from the 
instance, each party to pay its own costs. The 
following being the reasons for the judgment : 

From the record it is clear that on the day 
(2nd August, 1890) the promissory note was 
signed by Rattray and Le Roux, the partnership 
between these parties did still exist. That the 
original note was signed by Mr. Rattray on 
behalf of the firm, and the renewal thereof by 
Mr. Le Roux, also on behalf of the firm, and 
that the money was obtained for partnership 
purposes. 

It was therefore held by the Court that the 
action should have been brought against Rat- 
tray and Le Roux, and not against Rattray 
alone. 

The Court not being satisfied with defendant's 
plea, which stated that the partnership had been 
dissolved prior to the date of signing the promis- 
sory note in question, which, as from the further 
proceedings, it is clear that then at least the 
partnership did exist, did not allow him any 
costs as against plaintiff. 

The plaintiff now appealed. 

Mr. Jones, in support of the appeal: It is 
clear by R.-D. law that partners are liable in 
soliduM, Potier on Obligations (Part II.. ch. 
8, No. 270) Van Leeu/men's B-.D. Law (Eotz^'s 
Trans.), Vol. U., p. 370. As to English law, 
see rules framed under Judicature Acts, Order 
16 Rule li, IHoey's Parties to an Action, See 
also Simpson ^ Co, v. Fleck (8 Mens., 213); 
Kidson V. Campbell and Jooste (2 Mens., 293) ; 
Jaoohson v. Nitch (7 Juta, 174); Qrotius 
(3, 3, 8, 11), Bermvng v. Erasmus (9 C.L.L, 123). 

Mr. Rose-Innes, Q.C.,for the respondent, relied 
on King v. Porter^ Hodgson Sf Co, (Buch., 1879, p, 
117); Hatvrhoff v. Cape qf Good Hope Bank 
(4 H.C.R., 304) ; In re Paarl Bank (8 Juta, 134), 
and IVimnissen v. Fleischer (3 B.D.C., 291). 

The appeal was allowed with costs. 

The Chief Justice said : Where partners are 
resident in this colony, it is certainly a con- 
venient and proper practice that all the partners 
should be sued for a partnership debt. It is 
unnecessary now for the purposes of this case 
to decide whether a plea in abatement 
would be sustained by this Court according to 



68 



modem practice where all the partners have not 
been sued, or whether it would not be sustained, 
but I have no doubt whatever that when one of 
the partners is absent from the Colony, the 
plaintiff would be quite justified in suing only 
those partners that remained in the Colony for 
the whole of the debt. This view was taken for 
granted in the case of Aloook v. Dv. Preez (Buch. 
1875, p. 180), which was decided in this Court in 
1875. 

In the present case it was proved, althoiJigh 
only incidentally, that one of the partners was 
not resident within the Coleny. Therefore the 
plaintiff was quite justified in suing the partner 
remaining here. The appeal must be allowed 
with costs and the case remitted to the Magis- 
trate to be tried on its merits. 

[Appellant's Attorneys, Messrs. Findlay & 
Tait ; Bespondent's Attorneys, Messrs. Van Zyl 
k, Buissinn^.] 



OAKBSHOTT'B TBUBTEB V. BAKE 
OF AFBIGA. 



r 1896. 
1 Feb. 18th. 

Mr. Bose-Innes, Q.C., moved for the appoint- 
ment of a commission to take the evidence of 
Mr. Schweder, who is at present in Cape Town, 
but who is sailing for England on Wednesday 
next. 

Ho proceedings had been taken in the action 
further than an application made to the 
Eastern Districts Court for an interdict re- 
straining the Bast London Brancii of the defen- 
dant bank from parting with certain moneys, 
which interdict had been granted. 

The Court made no order. 

The Chief Justice said : Much as we should 
wish to assist the plaintiff I do not see a way 
of doing so. It does not appear that any action 
has been instituted. It is suggested that some 
steps have been taken in the Eastern Districts 
Court, but even if that is so it would be not 
quite proper for this Court to make an order. 
When the case comes to be tried before the 
Eastern Districts Court it might be said that 
the Supreme Court had no business to take evi- 
dence to be submitted to that Court. I have no 
doubt that, through courtesy, the evidence 
would be received, but at the same time this 
Court should not submit itself to the possibility 
of being told hereafter that it had no right to 
take the evidence. Therefore there can be no 
order. 



UBOIKA V. VLAK. 



r 1896. 
(Feb. 19th. 

Mr. Siddy applied for an order removing this 
case to circuit at Beaufort West. The prisoner 



was indiotad in the Supreme Court for cont»- 
vention of the first clause of the 16th seotioo of 
the Bailway Begulati<ms Act of 1861. 
Order granted. 



JEx parte bueicbibteb akd othbbs — Re 
"BSNXsmnE." 

Mr. Searle, Q.C., applied for an order making 
absolute a rule nUi calling on the master 
of the Ernestine to show cause why the 
vessel should not be attached for the purpose of 
founding jurisdiction in an action for debt. 

Order granted, costs to be costs in the cauae. 



SUPREME COURT. 



[Before Sir J. H. DB Villihbs (Chief Justice) 
Mr. Justice Buchakan, and Mr. Justice 
UFiKaxoK, K.C.M.G.] 



HILL BB08. y. BBIOH. 



r 1896. 
(Feb. SOth. 

Mr. Juta, Q.C., moved for an order to aet' 
aside the bar and to allow the defendant an 
extension of time within which to plead. 

Mr. Shell, for the plaintifb, consented on con- 
dition that the case was allowed to be set down 
for trial not later than Idth March. 

An order was granted extending the time for 
filing the plea for seven days, costs to be coats in 
the cause. 



BEEDLB Aia> 00., LIUITED. 

Mr. Searle, Q.C., applied on behalf of the 
directors of this company, in conjunction with 
creditors, for an order placing the company in 
liquidation under the Companies Act, 1892. 

Order granted. 



TRAUTMANN V. DCFKRIAL FIBS i 1895. 
INBUBAKGB OOMPAITT, LDflTBD. ( Feb. 30th. 

Plea in abatement — Fire policy — Cession — 
Proper person to sue. 

T.'s premises f insured hy the defendant com- 
pawy, hcnnng been destroyed by fire^ e^e 
compomiy vn Urms of its poliey undertook 
to rewuiate the premises. 

Previous to the fire T. had assigned M his 
right, title, and interest in the policy to S., 
and had given the compwiy notice of the 
cession. 



69 



The pfwiusea not having been rebuilt to T/s 
taHsfadion he med the company for the 
amount of the policy. 

Held, ou a plea iu abatement, that S. was the 
proper person to sue, not T. 



This was an action instituted by William 
Trantmann, of Hout's Bay, against James van 
Breda, as agent in Cape Town of the defendant 
company. 

The deolafation alleged that on or abont 7th 
October, 1893, the defendant issued a certain fire 
policy. No. 2,191,879, under and by virtue of 
which p<^cy the def endant^ acting for and on 
behalf of the company, and under certain condi- 
tioBs, and in consideration of a certain pre- 
mium paid to him yearly, agreed and undertook 
to insure against all risks from fire certain 
house and property situated at Hout's Bay, as 

set forth in the policy. 
That on or about the 26th April, 189i, when 

the policy was in full force and effect, the 
house and premises insured under the policy 
were destroyed by fire, by which the plaintiff 
was damnified to the extent of £100, the 
amount of the policy, the defendant being 
liable for the damages sustained. 

That thereafter the defendant admitted 
liability under the policy, and agreed and undw- 
took to rebuild the premises, and proceeded to 
do eot but did It in such a negligent, bad, and 
incompetent manner that the plaintiff protested 
as the rebuilding was proceeding against the 
workmanship and construction. That there- 
after the defendant tendered delivery of a house 
which he had caused to be constructed in place 
of that which was destroyed, but the plaintiff 
refused, and still refuses to accept the premises 
BO built in satisfaction or return for those de- 
stroyed, owing to the premises being improperly 
builtk in bad condition, and uninhabitable. 

That the plaintiff, owing to the conduct of the 
detedantin keeping him out of his residence 
wrongly or his neglect in fulfilling his agree- 
ment, has suffered still further grievous wrong 
and injury to the extent of at least £60. 

The plaintiff claimed : 

(a) An order compelling the defendant to re*> 
instate the building in a proper, habitable, 
workmanlike manner as nearly as possible to 
its former condition, or in the alternative the 
sum of £100^ the amount of the policy. 

ib) £50 damages owing to his not having had 
beneficial occupation of the premises. 

(0) Altematiye relief and coats of suit. 

The defendant qMoially pleaded : 

That on the 7th October, 1898, the plaintiff 
duly ceded his right, title, and iatereet by 



writing endorsed thereon in the policy referred 
to in the declaration to, and in favour of the 
Bev. Johau Frederick Stegmann, in his capacity 
as the treasurer, for the time being, of the 
Pniel Ministere' Sustentation Fund, as security 
for a debt then owing by him to the said 
Stegri^ann in his said capacity. 

Notice of the cession was by the plaintiff 
given to the defendant, who consented to the 
same, and duly registered the cession in the 
books of the company. 

The debt, hereinbefore referred to, is still 
owing by the plaintiff, and the cession has not 
been rescinded and is of full force and effect. 

The said Stegmann is the proper person to sue 
in any matter concerning the said policy. 

Wherefore the defendant prays that the de- 
claration may be dismissed with costs. 

For a further plea should the above be deemed 
insufficient, but not otherwise, the defendant, 
after admitting the formal allegations in the 
declaration, and the liability of the company 
to indemnify the plaintiff for his loss, said that, 
as representing the company, he undertook to 
reinstate and rebuild the said premises, as he 
had a right to do in terms of the contract, and 
that he did duly reinstate and rebuild the said 
premises, and subsequently tendered possession 
to the plaintiff before the commencement of the 
action, but that the plaintiff refused to acc^t 
the premises rebuilt in lieu of those destroyed 
by fire. The defendant speciaUy said 
that the premises had been duly and 
properly rebuilt, and were in every respect 
equal and equivalent to the premises which 
were destroyed. 

The replication denied the defendant's con- 
clusion of law, and specially that Stegmann was 
the proper person to sue and generally joined 
issue on the plea. 

Mr. McLaohlan appeared for the plaintiff. 

]£r Bose-Innes, Q.O., and Mr. Shell for the 
defendant company. 

Mr. McLachlan asked for leave to amend the 
replication by alleging that the cession to 
Stegmann had been cancelled. 

Mr. Bose-Innes, Q.G., consented to the amend- 
ment on the understanding that the onus was 
on the plaintiff to prove the cancellation. 

The company's policy book was then produced, 
which contained a note having reference to the 
policy sued on to the effect that as £80 Us. (the 
amount which it cost the company to reinstate) 
had been paid the policp was cancelled. 

Mr. Bose-Innes, Q.G., pointed out that if the 
plaintiff relied on this entry as an admission 
then he was out of court, as payment had been 
made. On the plea in abatement he relied on 
Voet (18, 4, 16); I%ek v. Bierman (2 Jnta, 26) ; 



70 



Van der By I y. Findlay and Kukn (9 Juta, 178), 
and Wetxlar v. The General Inmranee Company 
(3 Juta. 86). 

Mr. MoLaohlan referred to Bunyan (p. 198), 
and cited London Investment Company t. 
Monttfiore (9 L.T., p. 688) in support of his 
contention that where a fire policy had been 
assigned in the absence of express contract the 
Insurance Company was not bound to pay the 
assignee. As to interest of mortgagor, see 
Amould on Marine Inniranee (p. 83). He urged 
that whether Stegmann should have sued on the 
policy or not the plaintiff was entitled to sue 
the company on the agreement to reinstatCf 
which was alleged in the declaration and not 
denied in the plea. 

Mr. Bose-Innes, Q.O.. in reply pointed out that 
the declaration did not allege with whom the 
agreement to reinstate had been made, and 
referred to the correspondence to show that the 
agreement to reinstate had been made with the 
assignee's agent, and that no communication on 
the subject had passed between the company 
and the plaintiff. 

The Court suggested that the assignee's 
agent might consent to his name being 
added to the record as co-plaintiff, as all 
the witnesses were in court. 

Mr. McLachlan expressed the plaintiff's will, 
ingness to indemnify the assignee for any costs 
which might be incurred if the course suggested 
by the Court were adopted. 

Mr. Rose-Innes, Q.C., remarked that although 
anxious to adopt the suggestion of the Court the 
assignee's agent could not take the step 
suggested without communicating with his 
principal. In any case the plaintiff's personal 
indemnity for the costs could not be accepted. 

He also directed the attention of the Court 
to the fact that it was the plaintiff who had 
set the case down for trial. His proper course 
was to have set the case down for argument on 
the plea in abatement. The legal point could 
then have been settled and the costs of the 
witnesses' attendance would not have been 
incurred. The company could not be blamed 
for the course which the plaintiff had adopted. 

The Court allowed the plea in abatement with 
costs. 

The Chief Justice said: The cession of this 
policy was an out-and-out cession. Mr. Traut- 
mann "cedes and transfers all his right, title, and 
interest in and to the within policy to and in 
favour of Mr. Stegmann as a further security 
for a sum of money due by him," &c. It is 
quite true that although this is an out-and-out 
cession, its effect is to make it a pledge of this 
policy ; but so long as the debt is unpaid this 
pledge is quite equal to a cession so far as the 



cessionary is concerned. He is entitled to > U . 
the rights in. respect of this policy until the 
debt is paid— that is the position of ^e 
cessionary of the policy. The insurance com-iu 
pany could not pay anything to, or enter intc^ i 
any arrangement with the debtor (Mr. Traut-^ ^ 
mann). Mr. McLachlan has cited some English 
cases, which t do not think bear on this case, 
but even if they had a bearing they only refer to 
the law of insurance, and not to the 
law of cession. We have adopted the 
English law of insurance, but we have 

^o| adopted the English law relating to 

cession. Under the circumstances it appears to 
me that the qnlj jNerson^^titled to sue is Steg- 
mann. who has the cession of'tLe policy and 
whose debt is not paicT, and the plea must 
therefore be allowed with costs. At the same 
time I would suggest to the parties that as all 
the witnesses are here, it would be desirable to 
come to some arrangement by which the case 
may be heard. If Mr. Stegmann has a* repre- 
sentative in court who is authorised to conaent 
to his being made the nominal plaintiff on the 
record, the case could be proceeded with. 

The assignee's agent having declined to accept 
the responsibility without oommunicating with 
his principal, 

The Chief Justice said : The plea will be 
allowed with costs, including the costs of the 
witnesses, as the plaintiff himself set down the 
case for trial. 
Their lordship concurred. 
[Plaintiff's Attorney, H. P. du Frees ; Defen- 
dant's Attorney, C. C. Silberbauer.l 



SUPREME COURT- 



[Before Sir J. H. db Yillibbs (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
UpiNaTON, K.C.M.G.] 



PROVISIONAL ROLL. 



HABTFOBD V. WALltfiB. 



f 1895. 
(Feb. 2lBt 

Mr. Currey moved for an order compelling the 
defendant to deliver a good-for. 
Granted. 



Ex parte Philip cHavlbs Jaoobsohn. 
Mr. Graham moved for the admission of the 
applicant as an attorney and notary of the 
Supreme Court. 



71 



Tkiipplioaiit duly 
nittwL 



Affirmed, and was ad- 



OSNBR^L MOTIONS. 



Q TBI BETE ATE OP THK r«A.XK DAKISL ( 1896. 

trruuKicAir. (Feb. 2 let 

• 

Mi. Tredgold applied for authority to the 
Begii^T ol Deeds to pasB transfer of certain 
fina ntuated in the district of Queen's Town, 
ontheBengu Streain, to the eldest son of the 
Hiid late Btuurinaii, he bein|^ entitled thereto by 
nrtae of the law and custom of the Tembu 
tribe. 
The facta are these : 

Daniel Stuunnan, a Tembu, of Bengu in the 
Tambookie Iiocation, Queen's Town, holding a 
certificate of citizenship, was married under 
aatiTe cuatom to Sartyi, and had issue four 
looa and three daughters. On Sartyi's decease, 
he married one Lieah, whom he predeceased 
and by whom he had no children. 

Hana, the eldest son of Daniel, applied (under 
aections 3 and 3 of the Native Succession Act 
19 of 1864, and in accordance with the native 
cvtom applicable thereunder) that the Regis- 
trar of Deeds be authorised to pass transfer to 
the petitioner of a certain piece of land situate 
at Bengu and held at his death by Daniel on 
perpetual qnitrent. 

Bule granted calling upon all persons to show 
cante on the 13th April why transfer should not 
be effected. The rule to be served on the 
ciiildren of the deceased who had not joined in 
the present application.* 



IS THS MATTER OF THB CAPS OF I 1896. 

GOOD HOPE BANK. { Feb. 21st. 

Mr. Innes, Q.C., moved for authority to the 
official liquidators that they may be authorised 
to return to the contributories on 326 shares 
the sum of £3 lOs. 6d. per share, being the 
difference between £4 6s. paid and Hs. 6d. 
amount now found to be due, and to the con- 
tributory on nine shares the sum of £1 98. 2d. per 
ahare, being the difference between the amount 
paid by him, via., £4 lOs. per share, and the 
amount now found to be due, viz., 14s. 6d., plus 
iB2 8a. 4d. === £3 lOa. Od. per share. The Court 
ofdered that a rule nisi issue, returnable on the 
last day of term (Thursday, 28th February, 1895), 
calling on all persons concerned to show cause 
why the prayer of the petition shall not be 
granted. A copy of the petition to lie for 
inflection at the ofifioe of the official liqui- 

* Qn the return day the rule was made absolute. 



daton in the meantime. One publication of 
the rule in one of the English newspapers in 
Cape Town. 



m THB MATTES OF THE MIKOBS KBUOEB. 

Mr. Shell applied for authority to the 
mother of the said minors to raise a 
sum of money on mortgage on the farm 
Quaggasfontein, situated in the district of 
Queen*s Town, bequeathed to the minors by the 
joint will of their deceased father and surviving 
mother, for the purpose of erecting fencing and 
other improvements thereon. 

No order was granted. 

The Chief Justice said: It is impossible 
to make the order. It has not transpired what 
age the petitioner is or to what extent the 
minors, whose interest the Court is concerned 
in, would benefit by the expenditure. The 
petitioner is not without means, and at any 
rate should firnt spend the money, and then 
afterwards show to what extent the minors would 
benefit by the improvements. 



DICKSON V. DICKSON. 

Mr. Watermeyer moved for an order setting 
down the hearing during the present term of the 
suit instituted by the plaintiff against his wife 
for restitution of conjugal rights, failing which 
for a decree of divorce, personal service of the 
citation and intendit having been effected. 

Order granted, setting the case down for hear- 
ing on the 27th February. 



THE PETITION OF ANDBIBS TABATA AND 0THEB8. 

Mr. Molteno applied for authority to 
petitioners to raise a sum of money 
on mortgage of the farm Tabata. situate 
in the district of Queen's Town, for the 
purpose of freeing the same from an unsatis- 
factory lease and for satisfying debts due by 
petitioners. 

The Couri- made no order. 



SCHMIDT V. SCHMIDT'S IBXBCUTOBS. 

This was an application to make absolute 
the rule nisi restraining the respondents 
from alienating any portion of Schmidt's 
estate, and suspending the operation of an order 
of this Court, made on the 1 8th September last, 
regarding the disposal of the assets pending an 
action for a declaration of rights. 

The applicants did not appear. 

Mr. Searle, Q.C., who appeared for the defen* 
dants, asked that the rule nisi be set aside. 

The rule was set aside with costs^ 



72 



IN THB laSATB OF THB LATB MABOABSTHA UB 
BOUZ AUD SUBVITINa BPOUSB. 

Mr. Juta, Q.Cm moved for the appointment of 
a curator ad Utem to represent the minor 
children of Abraham J. Wannenberg in any 
proceedings whioh may be instituted in regard 
to the will disposing of the property of the said 
estate. 

Order granted, appoiniing Mr. Lind enrator 
ad litem. 



Iff THE ESTATE OF THE LATE JAN A. VAN WTK. 

Mr. Juta, Q.C, made a similar application 
respecting the minor children of the late Jan A» 
van Wyk. 

Order granted, appointing Mr. Lind curator 
ad litem. 



COOK AND ANOTHBB V. COLONIAL GOVEBNMENT. 

Mr. Shell applied for the appointment of a 
commission to take the evidence at East Lon- 
don of William B. Chalmers, a witness for 
the plaintiffs, who is unable through illness to 
attend the trial in Cape Town. 

The Court granted the order, and appointed 
the Resident Magistrate, or in his absence the 
Assistant Resident Mtgistrate of East London, 
commissioner. 



1895. 
WOLFF y. SOLOMON'S TBUSTBB. ^ Feb. 21st. 

" 22nd. 

Minor — Insolvency — ^Fraud — Ratification — 
Delivery of title deeds — Power of attorney. 

The plaintiff's father^ two years before his 
insolvency, purchased a farm in the Trans- 
vaal for his daughter and had the sam^e 
transferred in her name. 

Two yea/rs after the date of insolverhcy the 
defendant, as trustee of the ittsohent estate^ 
obtained from the insolvent the title deeds of 
the farm and a power , signed by the plaintiff, 
Kj^o was still a minor, authorisitig the 
transfer of the farm, upon the ifisolvenfs 
ctdmission that the price of the farm had 
been paid in fraud of his creditors. 

The defendant never took any steps to have the 
transfer to the minor set aside or to recover 
the purchase price from the minoi' assisted 
by a curator. 

The plaintiff married uhile stUl a minor and 
twM not aware of the delivery of the title 
deeds until it teas disc/yvered by her husband 
two years after the maniage. 



Nine years after such discovery the pkUnHff 
brought an action to recover the title deede 
and to have the power declared of no effect. 

Held, that, in the cibsence of sufficient proof 
of fraud, or of ratifkatvon, the plaintiff 
was entitled to succeed. 



This was an action for delivery of title deeds 
and for £5,000 damages, instituted by Mrs. Jiili« 
Wolff (bom Solomon), (married without com- 
munity of property to Victor Wolff, and duly 
assisted by him as far as need be), against 
William Dunn, a partner in the firm of Mackie, 
Dunn k Co., of Port Elizabeth, in his capacity 
as sole trustee in the insolvent estate of Hyman 
Henry Solomon, as well as in his individual 
capacity. 

The material allegations In the declaration 
were as follows : 

2. The plaintiff is the duly registered owner 
of the farm Paris, situated in the Zoutpanaberi; 
district of the South African Republic, which 
was transferred into and registered in her name 
in the Deeds Registry of the South African 
Republic in or about the 22nd September, 1674. 

8. In or about the month of April, 1876, the 
estate of the late Hyman Henry Solomon, who 
was the father of the plaintiff, was sequestrated 
as insolvent The said Solomon was then 
resident at Port Elizabeth, and the defendant 
was thereafter duly appointed and confirmed as 
the sole trustee of his estate. 

4. In or about the month of February, 1878, 
the plaintiff signed a power of attorney in 
favour of one James MacAlister, then a partner 
in the said firm of Mackie, Dunn & Oo^ 
authorising him to sell and transfer the said 
farm for the benefit of the insolvent estate of 
her father, the said Solomon. And the said 
Solomon thereafter handed the title deeda of the 
said farm to the defendant, who still holds them. 

5. The plaintiff received no consideration for 
signing the said power, or for parting with the 
said title deeds, and at the date when she signed 
the said power she was a minor of the age of 
seventeen years or thereabouts. 

6. In or about the year 1887 the said MacAliater 
substituted one Macfarlane, of Port Elizabeth, 
also a partner in the firm of Mackie, Dunn & 
Co., to act for him under the said power. A 
copy of the said power is hereunto annexed, 
and the plaintiff prays that it may be con- 
sidered as part of this declaration. 

7. The plaintiff was married to the said 
Wolff in or about the year 1879. 

8. Thereafter the plaintiff repudiated the said 
power of attorney and gave notice of the fact t^ 
the defei^dant and demanded delivery from hiiff 



78 



of tiM Mid title deed! of the iftid turn. The 
plaintiff has alwajB been and still is willing to 
ie|>ft7 to the said defendant any expenditure 
inonrred by him in paying taxes and dues in 
respect of the said farm, and before action she 
tendered, and hereby again tenders, to pay to 
the said defendant all amounts so expended. 

9. Tlie defendant wrongfully and unlawfully 
refoMS to give up the said title deeds, 
and elaims to retain them as an asset in the 
estate of the plaintiif *s father, who is now dead. 

lOl By reason of the wrongful oonduot of the 
defendant aa alorssaid, the plaintiff has been 
pterented from dealing with and disposing 
of the said farm, and has suffered damage to 
the extent of MjOlfXk 

The plaintiff claims : 

(a) An order compelling the defendant to 
deliyer up to her the title deeds of the said farm. 

(b) An order declaring the said power to be of 
no legal force and effect. 

(e) The sum of £6,000 for damages as afore- 
said. 

(i) Such altematiTe relief as to this Honour- 
able Court may seem meet. 

M Costs of suit 

The defendant pleaded that the insolvent 
purehased the farm before his insolTcnoy with 
his own money, and thereafter fraudulently 
proonred the farm to be registered in the name 
of the plaintiff for his own oonTenience, and in 
order to erade his creditors at a time when he 
was pressed by them and was unable to pay his 
just debts, but the transfer is for the above 
lessons void and invalid, as having been made 
in fraud of creditors. 

He further said that after the insolvency of 
the plaintiff's father, the plaintiff, in order to 
enable the defendant to obtain transfer of the 
firm in hia own name and in his capacity as 
teustee, and to make the farm available for the 
oeditorsof theei^tate, with the assistance of 
her father executed the power of attorney in 
fivoer of James MacAlister, who was then 
Mting as defendant's agent. 

That the phiintiff had full knowledge of the 
fMts» and ever since her majority acquiesced in 
And ratified the above acts of herself and her 
&ther, and iatiierefore not now entitled to bring 
thisaotion. 

That he (defendant) had paid all taxes and 
dues hi respect of the said farm since the date 
<rf the signing of the power, amounting in all to 
the sum of about S73 8s. The said farm would 
otherwise have been forfeited to the Govem- 
neat of the South African Republic. 

He admitted that he refused to give up the 
title deeds of the said farm, and said that the 

L 



farm is, under the above oiroomstanoee, an asset 
in the insolvent estate, in which there is still a 
laige deficiency, and that he is entitled to 
administer the said form for the benefit of the 
insolvent estate. 

The defendant claimed in reconvention : 

(a) A decree ordering the plaintiff, assisted 
by her husband, to execute all necessary powers 
to enable him to obtain transfer of the farm 
into his name. 

ih) Further relief and costs. 

In her replication, upon which issue was 
joined, the plaintiff denied that the insolvent 
purchased the farm Paris with his own money, 
and fraudulently caused transfer to be passed 
into her name in order to evade his creditors at 
a time when he was unable to pay his debts. 

She also denied that since her majority she 
had acquiesced in and ratified the power of 
attorney. 

]£r. Bose-Innes, Q.C., and Mr. Watermeyer 
for the plaintiff. 

Hr. Searle, Q.G., and Mr. Oastens for the 
defendant. 

Victor Wolff deposed that he was married to 
the plaintiff under ante-nuptial contract in 
1879. His wife at present resided at Wynberg; 
he at Johannesburg. When he married he heard 
that his wife had an interest in the property, 
but only knew it definitely in 1881, when he 
came back from Bngland. Witness was asked 
to sign a power of attorney respecting the pro- 
perty, but declined to do it ; that was in the 
presence of Mr. Solomon. Was told that a Mr. 
Dunn, of Mackie, Dunn & Oo,^ held the title 
deeds. In 1874 Mr. Solomon, his wife's fother, 
was apparently a rich man at Port Elisabeth. 
About the beginning of 1883 witness again went 
to England, but in the meantime he had been to 
the Transvaal. While there he made inquiries 
on the subject of the farm Paris. While wit- 
ness was in England in 1883 he met Mr. Dunn, 
and they had a conversation about the farm. 
Dunn asked him why he would not sign a power 
to transfer, and witness replied that he would not 
alienate it from his wife, as its value was 
likely to increase. At that time witness was 
not in good circumstances, and parties were 
holding bills over bis head, but he still refused 
to sign. Bemained in England till 1886, when 
he became bankrupt Had since paid all his 
debts. Went to Klmberley, and remained there 
till February, 1888. Up to that time was not in 
a position to take proceedings at law. Was in 
straitened circumstances when in February, 
1888, he went to the Transvaal. On the 13th 
May, 1889, he first instituted proceedings by 
wilting to Mr, PuQQ asking him where the title 



74 



deeds of the farmB Parii and Balloon 
were. The reply was that the deeda 
were in Mr. Dunn's possession, by yirtae 
of his position of trustee in the estate 
of Mr. Solomon, his wife's father. 
Witness had had good samples of gold quarts 
purporting to oome from the term Paris. First 
heard there was gold on the farm in 1889. It 
was about thirty miles from the terminus of the 
Selati railway, and might turn out very valuable. 
In 1888 he instructed his solicitor (Te Water, of 
Pretoria) to pay taxes on the farm. Te Water 
died, and left his affairs in a muddle, and the 
receipts for the taxes paid by witness could not 
be found. Mr. Kel succeeded to Mr. Te Water's 
business, and sent him certain receipts produced 
in court In May, 1889, he lodged a caveat with 
the Registrar of Deeds at Pretoria ; the farm re- 
mained to date registered in his wife's name. 
On the 22nd June, 1889, he instructed his 
solicitor (Mr. Chabaud) at Port Elizabeth to 
demand the title deeds from Mr. Dunn. Did this 
because at that time he could have floated 
the farm into a company at once. Received a 
reply through Mackie, Dunn & Co., stating that 
Mr. Dunn was resident in London, and that 
there had been no time to fully investigate the 
position which Mr. Dunn held, and referred to 
the suddenness of the claims of witness after a 
lapse of many years. 

Gross-examined by Mr. Searle : First went to 
the Transvaal about the end of 1882. From 
1883 to 1886 was in England ; from 1886 to 1888 
in Kimberley, and at the Transvaal since 1888. 
First written communication of any kind he 
made with regard to the farms was in February, 
1889, and that was when he found the farm was 
likely to be gold-bearing. If the taxes were not 
paid on farms they were forfeited to the Trans- 
vaal Qovemment after notice of forfeiture had 
been given to the owners. Mr. Solomon 
died in 1887 in the Transvaal. Shortly 
after he arrived in the Transvaal in 1888 
his pecuniary position improved, and 
it had gone on Improving considerably. In 
1889 he paid the arrear taxes on the farm from 
1886 or 1886. His attorneys had searched, but 
could only find the receipts for 1890 to 1898. 
Did not know that Mr. Dunn, in his capacity of 
trustee, had paid the taxes for many years. An 
action was brought by Mrs. Davis, his wife's 
sister, with regard to the other farm, Balloon. 
Witness had nothing to do with that action. It 
was only in 1881 that he actually knew that the 
title deeds were in the possession of Mr. Dunn. 
Wrote to him in 1889 with the object of ascer- 
taining if they were still in his possession. 

By the Court : Had he been called upon he 
wotUd have found means during the time he was 



in straitened circumstances to pay the arrears 
of taxes on the farm ; but he was too poor then 
to institute legal proceedings. 

Mrs. Julia Wolff, the plaintiff and wife of the 
last witness, deposed that she was thirty-three 
years of age, and lived at Wynberg. In 1874 was 
living with her father at Port Elisabeth. 
Remembered her father went to the Transvaal 
in 1874, and when he came back he told witness 
he had bought two farms ; one for her sister and 
one for herself. Signed the document in 1878 
(produced) at the request of her father. Did 
not know what was in the document. In 1876 
her father's estate was sequestrated, and before 
then her father kept a good house and liTod 
very well. At the time of her marriage she 
knew nothing more about the property than 
she had just stated, and after her marriage her 
husband looked after her business entirely. 

Cross-examined: Witness was educated in 
England. Lived at the house of Mr. and Mrs. 
Hyam Benjamin at Lancaster Gate, London. 
At the time her father came back from the Trans- 
vaal, witness was in Port Elisabeth, and her 
sister (now Mrs. Davis) at Mr. Benjamin's 
house. Did not know anything about Mr. Ben- 
jamin having given her father money. Did not 
know why her sister should have said that the 
farm Balloon was a present from Mr. Benjamin. 
When she signed the document in 1888 her 
father did not tell her that the property really 
belonged to his insolvent estate. 

Re-examined : Could not fix the date when 
she first knew that the title deeds were still in 
her name, but it was a year or two after her 
marriage. Had never received anything in 
respect of the property. 
This closed the evidence for the plaintiff. 
Mr. Searle submitted evidence taken on com- 
mission in London in March, 1894. Mr.Wii- 
liam Dunn stated that he was member of 
Parliament for Paisley. In 1876 Mr. Solomon 
became insolvent with liabilities of £46,000, of 
which £88,000 was due to the firm of Mackie, 
Dunn k. Co. Witness was appointed sole trustee, 
and a dividend was paid of Is. Id. in the £. The 
title deeds of the two farms were placed in his 
hands as part of the estate. Mr. Solomon 
told him that he had paid £100 for 
each farm, and handed over the title 
deeds to witness saying that they be- 
longed to his estate, and that he had wrong- 
fully transferred them to the names of his 
daughters ; and asked witness not to prosecute 
him. Mr. Solomon admitted to witness that he 
was hopelessly insolvent when he purchased the 
farms. In the year 1876 Mr. Solomon was an 
undischarged bankrupt under a previous bank- 
ruptcy. Witness left the Cape for England in 



^5 



1877, leaTuig his power of attorney and the title 
deeds with Mr. HaoAlister. He remained in un- 
disturbed poflsession of the title deeds from 1876, 
and all rates and taxes were paid. Gommuni- 
eated at one time with agents in the Transraal 
and tried to sell the farms. It was on the 13th 
May, 1889, that he first heard of the plaintiff 
making any claim on the farm. 

The eyidence of James MaoAlister, taken on 
oommiasion, stated that he held Mr. Dmin's 
power of attorney regarding the farm. Had 
paid taxes on the farms up to 1885. At that 
time the farms were not saleable. He employed 
agents in the Transraal to try and sell the 
farms, but they had failed to do so. 

Mr. Searle handed in acoounts to show that 
the disbursements made by the defendants 
in respect of the farms amounted to upwards 
of £200. 

. Mr. Justice Buchanan : Do you claim to have 
this declared a fraudulent transaction under the 
proTiBions of the Insolvent Ordinance 7 

Mr. Searle said that that was a i>ortion of his 
elainsi but thoy relied on Uie common law re- 
lating to alienation in fraud of creditors. 

Mr. Bose-Innes, Q.C., in support of the plain- 
tiif's case, cited Vaet (4, 1, 20), (17, 1, 17) ; and 
PtiUr on, Ohligatiog (Vol. L, 122). 

Mr. Searle, Q.C., r^ied on Voet (4, 4, 44) ; Van 
L09uwen's R,*I), Lem (Kots^'s Translation), Vol. 
IL, p. 348; Qrati%i4 (1, 8, 8) (8, 48, 10—13); 
atmiie D. F. (2, 9, 16) ; Chromenagmk ad Cod (2, 
41, 10-15). 

Cut, ad miU, 

Pott$a (February 22nd). 

The Court delivered judgment. 

The Chief Justice said: The plaintiff asks 
for an order to compel the defendant, who is 
tmstee of the insolvent estate of the late H. 
H. Solomon, to deliver up to her the title deeds 
of the farm Paris in the South African 
Bepublic, an order declaring a certain power 
to tiansfer the farm given by the plaintiff of 
no leg*l force or effect, and the sum of £6,000 
as damages for the detention of the title deeds 
by the defendant* The defence to the action 
is, firstly, that the farm had been fraudulently 
transfened to the plaintiff by her father shortly 
before his insolvency, and secondly, that after 
his insolvency the plaintiff, in order to enable 
the defendant to obtain transfer of the farm, 
with the assistance of her father H. H. Solomon, 
executed the power and that after she became 
of age she ratified these acts of her father and 
herMlf . As to the allegation of fraud there is 
not a partide of proof in support of it, except 
the vague evidence of a conversation between 
the defendant and the insolvent Solomon him- 
self, Mr. Dunn, the trustee, says: "He 



(Solomon) said he paid £100 each for the farms, 
and that as the farms belonged to his estate 
he handed me over the title deeds. This 
came out through my asking him what he had 
done with certain moneys belonging to his 
estate. He admitted that he had wrong^fully 
transferred and registered these farms in the 
names of his daughters and begged me not 
to prosecute him, for he admitted that he was 
irretrievably insolvent when he purchased and 
paid for the farms. He also promised to get 
a power of attorney from his daughters to 
enable me to transfer the farms to any future 
purchasers." This evidence, even if it were ad- 
missible, would surely not be sufficient to deprive 
the plaintiff of hor right to the farm on the 

ground of fraud. If the evidence is correct 
the proper course for the trustee would 

have been to recover from the minor 
the sum paid by her father for the 
farm, or else to have the transfer cancelled. 
For the purposes of such an action a curator 
ad Utorn would have been appointed for the 
minor, the circumstances of the insolvent at 
the time of the transfer would have been 
fully investigated, and the interests of the 
minor would have been duly protected. But 
without any such proceedings the tiiistee 
condones the father's alleged fraud and obtains 
a power to transfer to himself a farm, which, 
until the contrary is proved, must be held to 
have been lawfully transferred to the plaintiff. 
The transfer to the plaintiff, it shoald be 
observed, was not made by the father but by 
one Marais, from whom it had been purchased 
by the father on behalf of the plaintiff. 
Besides the evidence of a conversation with the 
insolvent there is no other proof of fraud. The 
fact that the plaintiff was only twelve years of 
age does not constitute such proof, more espe- 
cially when it is borne in mind that the transfer 
was effected nearly two years before her father's 
insolvency. The power of attorney was not 
given until two years after the date of inBolven<7, 
and in the meanwhile there was ample time to 
have the minor's title to the farm set aside. In 
the absence of sufficient evidence of fraud the 
first plea must fail. 

As to the second plea, it is perfectly clear that 
neither the delivery of the title deeds nor the 
execution of the power could in any way pre- 
judice the plaintiff during her minority. Even 
if the power had been carried into execution by 
transfer of the farm eoram lege loci, such 
transfer would have been null and void without 
the consent of a competent Court. On this 
point all authorities are agreed, and I need 
therefore only refer to Voet (27, 9, 8 and 9). Ho 
such transfer having been effected the full legal 



?« 



title remftins in the plaintiff and she is entitled to 
recover back the title deeds and hare the power 
declared of no legal force or effect, nnlen she 
haa lost this right by prescription or by ratifica- 
tion after she became of age. If prescription had 
been pleaded the question would have arisen 
whether the thirty years, or a lesser term of 
prescription applies to the present case. The 
plaintiff became of age by marriage in 1879 but 
the exact date was not stated in evidence. In 
1881 the plaintiff, through her husband, dis- 
covered that the title deeds were in the defen- 
dant's possession. In May, 1889, he first took 
legal proceedings against the defendant. He 
explains the delay by his straitened circum- 
stances until 1888, when he placed the matter in 
the hands of his solicitor, who died without 
instituting the action. The plea is that of 
ratification and not of prescription. To support 
this plea the defendant must prove that, after 
the plaintiff became of age, she in some way 
recognised the defendant's right to the posses- 
sion of the title deeds, or the validity of the 
power of attorney, or did or said something 
inconsistent with her present claim. Beyond the 
mere lapse of time no evidence of acquiescence 
or ratification has been given. 

The defendant himself took no steps b^ore 
Mr. Solomon's death, which took place in 1887, 
to complete his title by obtaining a registered 
transfer. He knew that after the plaintiff 
became of age he required her consent in order 
to carry out the arrangement which he had 
made with her father. In 1881 his attorney 
requested the plaintiff's husband to sign a fresh 
power, and in 1888 the request was repeated by 
the defendant, but the plaintiff's husband 
refused on both occasions to consent to any 
alienation of her property. So far then from 
ratifying her father's acts she, through her 
husband, expressly refused to assist in giving 
effect to them. She did not, it is true, pay the 
rates and taxes which fell due before 1886, but 
there is no evidence of her knowledge that the 
defendant was paying such rates and taxes. 
Any payments so made by the defendant must 
of course be refunded and in her declaration 
she has tendered to repay the amount. Sul^ect 
to such tender, judgment will be given in terms 
of the claims (a) and (b) with costs, excepting 
the costs of the summons, which does not 
contain any tender. 

Mr. Justice Buchanan : I concur, and the only 
point which 1 thought required consideration 
was whether the defendant had established 
the 4th paragraph of his plea ; that the 
plaintiff had full knowledge of the facte, and 
ever since her majority acquiesced in and 
iratified the acts of herself and her &ther. Of 



coarse, this ratification might be either hf 
express act or by conduct, but there has been mo 
such conduct on the part of the plaintiff. Ck>ii- 
sequently, the plaintiff not having ratified the 
act of her &ther, she must now succeed in her 
suit. 

Mr. Justice Upington also concurred. 

[Plaintiff's Attorneys, Messrs. TrolUp ic 
Hutton ; Defendant's Attorneys, Messrs. Scaml 
& Sytret.] 



r 1896. 
I Feb. SSnd. 



Me BIBKDLK AKD CO., DT* LIQUIDA- 

TICK. 

Mr. Searle, Q.C., applied for an order appoint- 
ing Messrs. Hanau, Fismer, and Kock official 
liquidators of the company with the ordinary 
powers under the 149th section of the Actw 

Order granted, costs of the application to be 
costs in the liquidation. 



8TBASBUBOEB V. TBBBOB FBSaB& 

Mr. Innes, Q.C., on behalf of the defendants, 
applied for an order postponing the date of the 
trial of this action for debt, set down lor the 
afith February, and appointing a commissioii to 
take the evidence of witnesses in Paris. 

Mr. Searle, Q.O., consented on condHion that 
the defendants paid the costs of the appUeatton 
and of setting the oase down for trial.. 

The Oourt granted the order on condition that 
the applicants pay the costs of the appUoation 
and of setting the case down for triaL Mr. 
Thomas Barclay, barrister-at-law, resident in 
Paris, was appointed commissioner. 



MABKHAM ▼. WIBBMAN. 

Guarantee — Action oo. 



f 1895. 
i Feb. 22nd. 



This was an action on a guarantee for the 
sum of £84 16s., instituted by Mr. Henry 
William Markham against Mr. Alexander Kaj 
Frame. 

The declaration alleged that on or about tiie 
2eth, 29th, or 80th June, 1894, one Simon Wise- 
man was desirous of purchasing certain goods 
and merchandise from the plaintiff for the sum 
or price of £82 Is. 6d. 

That Wiseman had been iniarodueed to the 
plaintiff by the defendant^ and the latterunder- 
took and agreed that if the plaintiff would sell 
and deliver the goods upon credit to Wlsen&an, 
he (defendant) would guarantee the payment of 
the purchase price within thirty days from the 
date of sale. 

That in consideration of the defeadant's 
guarantee the plaintiff did sell and ieltver the 



if 



floods upon credit to Wiieman, who thereafter 
&iled to pay the porohase prioei and the 
plaintiif called upon the defendant to satisfy the 
same and notified to the defendant that in 
defiralt of payment of the pnrohase price by him 
the plaintiff wonld sue and excuse Wiseman, yet 
the defendant neglected to pay the amonnl 

The plaintiff thereafter obtained judgment 
against Wiseman in the Court of the Resident 
Magistrate of Cape Town for the sum of 
£32 €e. 6d., and took out a writ for the amount, 
to which a return of nuUa bona was made. The 
taxed coets of the proceedings amount to 
£2 8B.6d. 

The plaintifE claimed the sum of £34 16e. 
with coetfi of suit. 

The defendant in his plea denied that he 
midertook and agreed to guarantee in any man- 
ner ^e payment of the purchase price of the 
goods. Issue was joined on the replication. 

Mr. Rose-Innes, Q.C., and Mr. Shippard for 
the plaintifE. 

Mr. Jones for the defendant. 

Henry Charles Abbott, salesman, in the em- 
ploy of Mr. Markham, said that the defendant 
ooevpied an offiee in the same building, and 
about the 13th June last introduoed Wiseman to 
the firm, asking Mr. Day, the manager, if he 
would open an account with Wiseman. Mr. 
Day declined, but said to Frame that if he 
would guarantee the payment of the goods 
supplied to Wiseman he would supply them. 
Fnme relied, **yeiy well," and goods were 
acoordinffly supplied on June 12 to Wiseman to 
the amount of £16 4s. It was arranged that 
Frame should be consulted on each order from 
Wiseman. The goods were to be paid for in 
thirty days, and Frame paid the £16 46. by 
cheque, getting 2i per cent* discount. On the 
26th June Wiseman ordered goods to the amount 
of£2iaB.9d. Mr. Day saw defendant about 
the Older, and the goods were supplied. In- 
Toioss were sent to both Wiseman and defendant. 
On the 29th June Wiseman selected further 
goods to the value of £XX 3s. 9d. Witness 
serred the goods, and put them aside as in the 
preTious case. Saw Frame about it, and tdd 
him that Wiseman had been in again. Frame 
came to the office in the shop, and asked how 
much the previous lots came to. Frame looked 
at the ledger, and saw it was £21 2b. dd. After 
ooBsidering a little while, he said, " All right, let 
him have these, bat no more." Invoices were 
•gain sent both to Frame and Wiseman. Wise- 
aaa was entirely unknown to his firm. 

Cross-examined by Mr. Jones : On the first 
oooasion Frame asked his firm to supply Wise- 

bmh with goods. Could not remember the 



exact words of the conversation that took place 
between Frame and Day, but he had stated 

what his impression was. The meaning of it 
was that Frame guaranteed and made himself 
responsible, if Wiseman did not meet this debt 
Frame was to do so. Frame was sued at Wyn- 
berg for these goods as principal debtor, and 
not as guarantor. Supposed that it was a mis- 
take on the part of the firm's legal advisers. 
That case was lost because Wiseman had not 
been excussed. Nothing was said at the 
first transaction with regard to future trans- 
actions. The conversation only referred to that 
first transaction. Witness here qualified this 
by Baying that it was then arranged that Frame 
should be consulted at each future trans- 
action. Myburgh was in partnership with 
Frame, but they only knew Frame in the mat- 
ter. Could not say what benefit Frame received 
for guaranteeing. Supposed Frame kept the 24 
per cent, discount. On the second occasion, 
when Wiseman ordered goods to the amount of 
£21 2b. 9d., Day saw Frame, but witness did not 
know what took place. No letters were sent to 
Frame, only an invoice. Did not know from his 
own personal knowledge that Frame guaranteed 
the second lot, but when the third lot was 
ordered (the second lot of goods being made up, 
but not delivered to Wiseman) Frame guaran- 
teed both lots together, and told wit- 
ness not to give any further credit. 
This was the first guarantee witness 
had been interested in. Did not ask Frame for 
a written guarantee. Frame did not mention 
the name of Bekker, a partner in the firm of 
Sturk & Co. Did not hear Frame say he had 
money of Wiseman's, nor did he understand 
that that was a condition of the guarantee. 

Joseph Gray Day, manager at Markham's, 
said that when Frame brought Wiseman, he 
said he was not opening any fresh accounts. 
Frame, however, said he would guarantee it, so 
the goods were supplied. Witness told Frame 
he would consult him on every transaction with 
Wiseman, and Frame acquiesced. Frame told 
witness he had money of Wiseman's. Would 
not have supplied the goods without Frame's 
guarantee. On the 6th August he wrote to 
Frame requesting payment; Frame replied 
repudiating the guarantee. Subsequently wit- 
ness saw Frame and asked him what he meant. 
Frame replied, " It will be all right, it will be 
paid," and repeated this on a further occasion. 
Did not attempt to worry Wiseman. 

Cross-examined : He looked to Frame for 
settlement in the first instance, and not to Wise- 
man at all. Frame rather expressed sympathy 
with witness in the matter. Witness would not 
be held responsible by Mr. Markham. 



?8 



Mr. Henry William Markham said that he 
had a conyenation with Frame, who eaid he had 
nothing to do with it. Witnees replied that if 
all he heard was true, Frame would have to pay, 
and that it would put Mr. Day and Mr. Abbott 
in a serious position if what they had stated 
was not true as to the guarantee. 

Cross-examined : Believed it was with the 
best intention that Frame brought Wiseman to 
his firm. Had tried to get the case settled with- 
out coming into court. 

Alexander K. Frame, the defendant, deposed 
that he was a broker and commis- 
sion agent In June last year be was 
in partnership with Mr. Myburgh. He in- 
troduced Wiseman to a dozen different firms in 
town but always mentioned to those firms 
that Wiseman would be guaranteed by Mr. 
Bekker, of Sturk & Co. Also mentioned to Mr. 
Day at Markham's, that Bekker would be his 
guarantor if required. Witness acted as agent 
for Wiseman, from whom he received amounts 
at different times and paid his accounts for him. 
Wiseman traded up-country, and on this occa> 
sion he wanted some waterproofs. Witness 
took him to Markham 's and supposed Wiseman 
would pay cash. However, Wiseman asked for 
thirty days' credit, and Day took witness aside 
and asked him if it was good enough. Witness 
told Day he had better go to Mr. Bekker, who 
had guaranteed Wiseman to other firms ; and 
then Day said to Wiseman that if what witness 
said was true he should have the goods. Wit- 
ness himself believed in Wiseman on account of 
Mr. Bekker backing him up. It was not 
his custom ever to guarantee people. 
Received the money from Wiseman 
with which to pay the first account. 
Received the exact amount from Wiseman 
beforehand. (Account-books produced.) He 
never received the benefit of the 24 discount. 
Wiseman handed him the exact amount, which 
he in turn paid Markham. Some time after 
the first transaction Day asked him about Wise- 
man, and witness replied he thought he was 
good enough for about il20. He denied that 
Day ever asked him to guarantee Wiseman's 
account. He refused to guarantee Wiseman to 
the firm Gourlay, in Strand-street, at that very 
time. It was against his practice to guarantee. 
It was only on the 14th August that he was first 
made aware that Markham held him respon- 
sible. 

Cross-examined : Wiseman left Cape Town at 
the commencement of July, taking a lot of 
goods with him from different firms. When he 
disappeared he owed witness about £10. Wise- 
man had thoroughly deceived both witness and 
Mr. Bekker. It was about the middle of August 



that he heard that Wiseman had decamped. On 
several occasions he saw Mr. Bekker and 
inquired about Wiseman's position. That was 
because he was having many transactions with 
Wiseman. Never received any invoices from 
Markham for goods supplied to Wiseman. 
Would swear he never saw the ledger as stated 
by Mr. Day. (Witness was examined at lengUi 
on entries appearing in his books showing trans- 
actions with Wiseman.) Wiseman always paid 
his accounts through witness. 

Re-examined : Wiseman had just returned 
from up-country, and gave witness a memoran- 
dum of amounts owing by him to different 
firms, wiUi the money, and witness paid them. 
There were many other accounts in the same 
position as Markham 's, but no other firms had 
tried to hold him responsible. If he had 
guaranteed at all, it would have been as a mem- 
ber of the firm of Frame & Mybuigh. 

Peter Myburgh deposed that in June last he 
was a partner with Frame. The firm never 
received any invoices from Markham for goods 
supplied to Wiseman. If they were addressed 
to Mr. Frame, witness would not open the 
envelope. 

Mr. Jones, for the defendant, relied on Korgter 
V. Blake (3 Shell, 27); Wood Bro$, v. Gardner 
(6 E.D.C., 189), and Poti^ on OhligoHant 
(section 401.) 

The Court gave judgment for plaintiff with 
costs. 

The Chief Justice said : Mr. Jones has very 
properly contended that the onus of proving 
a guarantee lies wholly upon the plaintiff, 
and that unless he satisfied tiie Court that his 
witnesses properly understood the contract to be 
one of guarantee, and that the defendant also so 
understood it, he is not entitled to suooeed. 
Now in this case two witnesses are called on 
behalf of the plaintiff, Day and Abbott, who 
swear positively, not to one conversation but to 
several conversations, and they go into minute 
details as to the nature of the conversations 
between them and the defendant. Now if their 
statements are not correct they must be 
perjuring themselves, because they give mmate 
details, and if they are correct there can be no 
doubt whatever that the intention of the 
defendant was to give a guarantee for 
the goods sold by the plaintiff to Wiseman. 
The evidence is that on the first occasion, 
the 12th June, the defendant introduced Wise- 
man to Day ; Day refused to supply, sajring he 
did not wish to open any new accounts, where* 
upon the defendant said he would guarantee 
payment, and it was only on this Day consented 
to deliver the goods. Botii witnesses say also 
that it was arranged that every transaotion 



79 



in the first instaTice l>e mentioned to 
Fnme, and guaranteed, 'by liixn ; there was to be 
Bogeneml guarantee antlioriBinK Wifleman to 
boy fnm MarlLhani. On tlie first occasion 
Wueman waa supplied, and before the 
doe date, on the 22nd June, the 
goodB were paid for. I did not quite 
eampTciheiid the evidence of Mr. Frame on 
this point, bat I nnderetood from him that Wise- 
man wax have calculated the discount by him- 
idf, and without first going to the plainttlE, 
kMi Mceriained the amount actually due, but 
in cnwa-examination it appears that Wiseman 
bad ftitt been to the plaintiff, and there ascer- 
tained the amount, afterwards going to the 
detendant and iMA-^Ttg him to pay it. Now this, 
QQtbe face of it, appears to be a most unlikely 
IKooeeding. Then it is said that on the 26th 
June Bay came to consult the defendant again 
for the pnrpoae of ascertaining whether Wise- 
man waa still good, bat Wiseman had only a few 
days before paid hie account, so I do not under- 
staiid why just after receiying the money from 
Wiaeman, Day should again go to the defendant 
for the purpose of ascertaining whether ho was 
/ good. But Day says thnt he went for the pur- 

pose of aaoertaining whether Frame would 
still guarantee the second purchase by Wise- 
man. Well, as to the second purchase, we have 
the evidence of Mr. Day alone, but as to the 
third porchaae, we hare the evidence of both 
Day and Abbotts Day did not hear all the con- 
▼eraatioo, bat one important matter that came 
out is that after the defendant had seen the 
anuKmt of the goods, he said, "Very 
veil ; let him have these goods, but 
more." Now, why should he say, 
not let him have any more '' 
he was responsible. His interest, as well as 
that of the plaintiff, was that Wiseman should 
be anpplied, and it could only be owing to a 
existing that he said he might have 
goods but no more. It was quite clear 
at that time the defendant had the fullest 
eonfidenoe in Wiseman, he was in intimate 
relations with him and believed Wise- 
in would pay the money. So long as the 
anKmnt was small, I am of opinion that he had 
BO objection, although it was not part of his 
btaiiiiffw as a broker to guarantee these small 
amovmtB ; he was certain that they would be 
paid by Wiseman, and it seems to one such 
a pvobabJe thing for him to say he 
would guarantee it. At all events, the plain- 
tiff's evidence i^ quite consistent with all the 
probaiii/ities of the case ; the evidence of both 
viteesMS was given in a very clear and distinct 
maaiier, whereae the evidence of the defendant 
»as given in a Fer7 vagae maqner. ^e could 



only recollect having vague conversations ; but 
when it came to details, the defendant was 
entirely at sea. Well, under these circumstances, 
the clear proof that the Court always must 
insist upon in these cases is forthcoming, and 
judgment will be for the plaintiff with costs. 

Mr. Justice Buchanan concurred with the 
judgment, and said it was only another case 
which showed the desirability of having written 
agreements in transactions of this kind. 

[Plaintiff's Attorneys, Messrs. Trollip Sc 
Hutton ; Defendant's Attorneys, Messrs. J. & H. 
Reid Sc Nephew.] 



DOE v. BBOWN. 



f 1896. 
1 Feb. 22nd. 

This was a cross ajlpeal from a decision of the 
Resident Magistrate of Tulbagh, in an action in 
which the present appellant, plaintiff in the 
Court below, sued the respondent and defendant 
for the sum of £10 14s., being the cost of con- 
veying 107 loads of stones at 2s. a load at Ceres- 
road at the special instance and request of the 
defendant, less £6 2s. 6d. for goods supplied by 
the defendant to the plaintiff. 

The defendant admitted the debt of £10 14s., 
and filed a claim in reconvention for £10 16b. 
for goods sold ; £9 lOs. 64 and £1 4s. 7d. due by 
one Koos Doe, which the plaintiff undertook to 
pay. 

The Resident Magistrate grave absolution from 
the instance on both claims, and made no order 
as to costs. 

From this judgment both sides appealed. 

Mr. Juta, Q.C., for the original plaintiff. 

Mr. Graham for defendant. 

The Court allowed the plaintiff's appeal, and 
altered the judgment of the Magistrate to judg- 
ment for the plaintiff for £3 16b. Id. with costs 
in the appellate Court and in the Court below. 
The defendant's appeal was dismissed. 

[Plaintiff's Attorneys, Messrs. Findlay &. 
Tait: Defendant's Attorney, G. Montgomery- 
Walker.] 



80 



SUPREME COURT. 



[Before Sir J. H. db Villibbs (Chief Justioe), 
Mr. Justioe Bocranan, and Mr. JuBtioe 
Upinqton, K.C.M,Q.] 



BBOIKA y, KOCK. 



C 1895. 
1 Feb. 26th. 

Mr. Giddy applied for an order changing the 
venue in this case from the Supreme Court to 
the next Circuit Court to be held at Prince 
Albert. 

Order granted. 



TBUTEB y. TBUTBB. 



(■ 1896. 
I Feb. 26th. 

This was an applioatioif to attach certain 
■alarj due to the defendant and at present in 
the hands of the Attomey-Oenerars Depart- 
ment* 

On the 15th Februaiy, 1896, the plaintiff 
obtained judgment against the defendant for 
the sum of £168 10b., less £86 10b. paid on 
account (due under a deed of separation 
executed between the plaintiff and her husband, 
the defendant), with leave to issue execution 
against all moneys standing to the defendant's 
credit in the Kimberley branch of the Standard 
Bank. 

A writ was issued, but the only money to the 
credit of the defendant was the sum of £2. 

The plaintiff now petitioned for an order 
allowing her to attach and issue execution 
against certain salary, about £80, belonging to 
the defendant in the hands of the Attomey- 
General's Department* 

The Government offered no objection. 

Mr. Shell was heard in support of the appli- 
cation. 

The Court granted the order as prayed. 



HAUPTFLBI80H V. HAUPTFLBIBGH. J ™ i^^;^,- 

( Feb. 26tn. 

This was an action for restitution of conjugal 
rights, failing which, for divorce on the groxmds 
of the defendant's malicious desertion. 

The declaration alleged that the parties 
were married on 22nd December, 1884, in com- 
munity, that one child was bom of the marriage, 
and that the desertion took place in November, 
1894. 

The defendant iq her plea admitted her 
refusal to return to the plaintiff, alleged various 
acts of cruelty and ill-treatment on his part, and 
claimed in reconvention a decree of judicial 
separation and the custody of the child. 

Mr. Benjamin for the plaintiff. 

Mr. Molteno for the defendant. 



Barbara Johanna Hai^tfleisoh, the defendant, 
deposed that she was a governess at Krukfon- 
tein when she was married to the plaintiff in 
December, 1884. For about a year she and her 
husband lived happily together, but from that 
time he began to ill-treat her. His mother 
advised him to beat her, and he did so. He hit 
her with his hand. This was by reason of 
disputes in which she would not give in. 
A child was bom in November, 1886. 
Between 1886 and 1888 her husband did not beat 
her very frequently, but in 1888 she refused, for 
good reasons, conjugal relations with him, and 
he beat her with his fist. Her uncle, Peter 
Bamadus Marais, lived at Krukfontein, and she 
complained to him, and she and Marais went to 
Mr. Burton, the Resident Magistrate at Bioh- 
mond. Mr. Burton gave certain advice, and she 
then consulted Mr. De VilUers, a law agent at 
Bichmond. Soon after she again went to Rich- 
mond, when Mr. De Yilliers asked her to with- 
draw the case. The result was that she forgave 
her husband, and they lived together again. He 
treated her well for about five months, but then 
began to ill-treat her again, pushing and pulling 
her about. Ihe " Kerkraad " tried to bring about 
amicable relations, but failed. In 1892 his con- 
duct became worse. In March of that year he 
punished the child with an ox reim. She inter- 
fered, and he then struck her inten- 
tionally with the reim two or three 
times. She complained to her husband's oouain, 
about a week afterwards, and she showed cer- 
tain witnesses the marks. She left the farm 
and went to Krukfontein, but after four or five 
days returned to her husband. He treated her 
well for two months, but then threw stones at 
her. She would not give him a key, and he 
dragged her about the house and strack her in 
trying to get it. She was badly hurt in the aide 
and breast. The next day she saw a doctor at 
Richmond. She was ill at the time. She was 
afraid now to live with her husband. 

Cross-examined: Did not remember telling 
her husband on the marriage day that she 
regretted having married him. She was a 
woman of quick temper. She would not travel 
with her husband, saying that she was tired of 
trekkiug about with him. Did not want to live 
at the place he proposed. When the 
child was being beaten by his father, 
she knew her husband said that it 
was because he had told untruths. She, how- 
ever, interfered, and they had a violent quarrel. 
In the heat of the quarrel he gave her three 
blows. Did not remember threatening to Rtab 
him, nor did she ever throw large stones at him. 
Her husband had asked her to go back to him, 
but she refused, and she still refused, Woi^ld 



81 



i 



not bdleTe in Y^Ib promiBes of kindneas any 
more. She had left liiixi on two occasions and 
went U> stop with her uncle, Piet Afarais. Knew 
ha biuftmnd objected, to her going to Piet 
Karua* honae, but ahe 'went in apite of this, and 
remabied there lor two daya. Was at present 
Uving with her uncle, Piet Marais. 

Be-examined : Her husband had now broken 
vp the home and aold all the things. 

Peter Odendal, a farmer residing at Kruys- 

fmiuiL, district Hanover, deposed that he was 

Qua of thoee to whom Mrs. Hauptfleisch showed 

tha ox.-Teim marka, in her husband's presence, 

\iil992. Her arm was bmised. 

^nkeat JaodbuB Maraia. son of Piet Marais, 
gave similar eridence. 

Petma BemharduB Marais deposed that he 

U^edat Kmkfontein, and was uncle to Mrs. 

Haaptfleiach. He was seventy-eight years of 

age. She came to him complaining, and he 

beiped her to get legal adyice. 

Ctosi-ezamined : Mrs. Hauptfleisch had visited 
his farm, since her marriage, several times. Was 
act aware that Mr. Hauptfleisch objected. 
About ten years ago he was charged with being 
the father of an illegitimate child. He was not 
guilty, but he paid £100. Did not know Mr. 
Hauptfleisch objected on account of this to his 
wife visiting the farm. 

Anna Elisabeth Marais, wife of Ernest 
Maraia, deposed that she saw Hauptfleisch beat- 
ing his wife, who was bruised very much. Mrs. 
Hauptfleisch was always a sickly woman. 

Croaa-examined : Mrs. Hauptfleisch was at 
present living with her at the farm. At the 
time of the assault she was struggling to get 
away, while he insisted on putting her into a 
cart. 

Dr. Krige, of Bichmond, said he had known 
Mrs. Hauptfleisch for about five years. She was 
a delicate woman with hysterical symptoms. 
She once came to him complaining, and he 
found she had several bruiaes on the breast and 
one on the side. She had been very roughly 
handled. 

Croes-ezamined : The bruises might have 
been caused by her own struggles. 

Geoige Btephanus Hauptfleisch said that on 
the afternoon of the wedding day his wife said 
ahe looked upon him with revulsion. Witness 
proceeded to explain in detail the reason of the 
quarrels between his wife and himself. She had 
an ungovernable tamper. Refused to go with 
him to live at a certain farm, but not on any 
specific grounds. On the occasion of his punish- 
ing the child for telling an untruth, she inter- 
fered, and he struck her. She was very fre- 
qoently violent, and on one occasion threatened 
to stab him. He waa qow perfectly willing to 

M 



take her back, and had a home for her. When- 
ever they quarrelled she always went to Piet 
Marais, and he usually had to fetch her back. 
He objected to her going to Piet Marais on 
account of his having had to pay £100 in respect 
of a certain charge brought against him. There 
was only the one child of the marriage, and he 
was nine years of age. 

Gross-examined : Offered that morning, if the 
case was not brought into court, to enter into a 
judicial separation with his wife, and give her 
the custody of the child and to pay costs to date 
out of the joint estate of himself and wife. He 
went straight to her solicitors with this offer 
and was told to send the offer through his own 
solicitors. He would, however, rather take her 
back. He wanted the custody of the child, and 
was able to support ai)d educate him. Had sold 
everything up and inserted a notice in the 
** Richmond Era. " The Eerkraad h ad approached 
him with the object of bringing about better 
relations. His wife was a weak woman, but not 
very delicate. Had heard the doctor's evidence. 
Admitted it waa not a proper thing to strike 
her with an ox reim, and- was sorry for it. 
Denied that he struck her since, or that he ever 
said he had a right to do so. Mrs. Marais did 
not tell him that his wife was ill just previous 
to his striking her. Had sold up everything. 
There were ten oxen which his father had bought 
for £2 each. Had got no stock left, except a 
few sheep. He was now riding a Scotch cart at 
Richmond, and was making 28. a day. He 
undertook now that if his wife returned to him 
he would treat her kindly and never strike her 
again under any provocation. 

By the Court : Considered the joint es( ate to 
be worth about £130. Would rather live with 
his wife than be separated. 

Johannes Pretorius, special constable at 
Richmond, deposed that he was very intimate 
with the parties, but had never seen Mr. Haupt- 
fleisch ill-treat his wife. Saw Mrs. Hauptfleisch 
throwing stones at her husband. She had a 
very short temper. He was married to Mrs. 
Hauptfleisch 's sister. 
Mr. Molteno was heard for the defendant. 
The Chief Justice said : In this case there are 
faults of temper on both sides. I am quite 
satisfied that if the defendant had always been 
a kind wife to the plaintiff those scenes of which 
we have heard to-day would never have 
occurred, and I think she is greatly to blame for 
everything that took place. The plaintiff, no 
doubt, occasionally lost his temper, and did 
what no husband has a right to do. He did 
strike his wife, but not with such violence as to 
justif}' the Couit, after such provocation, in 
refusing him the relief he prays for, but I th|nk 



82 



it is far better for these people that 
they should be apart. The child had 
better remain with the mother until he is six- 
teen years of afpe. Of course she will 
have the option of returning to her husband. 
The Court grants a decree for restitution of con- 
jugal rights, with costs out of the joint estate ; 
the defendant to return to the plnintifE on or 
before the 31st March, failing which the Court 
will grant a rule nUi to show cause on the 18th 
April why a decree of divorce should not be 
granted. The plaintiif to have the custody of 
the child from the iffne he reaches the age of 
sixteen, and to contribute 30s. per month towards 
the maintenance of the child, who will in the 
meantime remain in the custody of the mother. 
The plaintiif to have access to the child at all 
reasonable times and places. 

[Plaintiff's Attorneys, Messrs. Van Zyl Sc 
Buissinn^; Defendant's Attorneys, Messrs. 
Fairbrldge, Arderne k Lawton.] 



BUBN8 V. TOWN COUNCIL OF CAPK fpeb 2'5th. 

TOWN. V »i 27th. 

C „ 28th. 

Building contract — Termiuatioo — Justifica- 



tion. 



This was an action instituted by Arthur 
Rayner Bums, a contractor, against the Town 
Council of Cape Town. The declaration alleged 
that on 13th November, 1893, the plaintiff 
entered into a certain contract in writing with 
the defendants whereby he undertook to erect a 
certain engine-house and chimney for electric 
lighting purposes according to certain plans and 
specifications (annexed to the declaration). 

The said works to be completed by the 
plaintiff within the period of 190 days from the 
date of signing the contract, and in considera- 
tion of plaintiff erecting the works the de- 
fendants undertook to pay him tbe sum of 
£3,814. Thereafter on or about 14th November, 
1893, the plaintiff entered upon the works in 
accordance with the terms of the contract, and 
duly proceeded to perform his work under the 
contract. 

The plaintiff was unable, notwithstanding due 
diligence, to complete the works within the time 
specified in the contract owing to the action of 
the defendants in failing to supply certain 
material as agreed upon by them in the con- 
tract and in ordering certain additional works 
to be performed in connection with the erection 
of the house and chimney. On or about 7th 
July, 1894, the defendants wrongfully and un- 
lawfully refused the plaintiff permission to com- 
plete the works and wholly, ai^d finally, and 



wrongfully prevented and discharged the plain- 
tiff from completing the same, and wrongfully 
took possession of the plant and tools of trade 
belonging to the plaintiff, which said plant and 
tools of trade the defendants have refused to 
deliver to the plaintiff. 

On the 7th July, 1894, there was due to the 
plaintiff by the defendants for work and labour 
performed and material supplied the sum of 
£1,148 Is. 7d., which sum or any portion thereof 
the defendants refuse to pay to the plaintiff. 

The plaintiff said that by reason of the above- 
mentioned wrongful and unlawful acts of the 
defendants he had lost large profits which he 
would have acquired by the execution of the 
works and had sustained damage in the sum of 
£1,500. 

The plaintiff claimed : 

(a) An order compelling the defendants to 
deliver up to him his plant and tools of trade, 
or their value, £126. 

(b) Judgment in the sum of £1,148 7s., being 
the amount due to him as per account annexed 
to the declaration. 

(^c) £1,600 damages for breach of contract. 

id) Costs of suit. 

The defendants, after admitting the formal 
allegations in the declaration, specially denied 
that the plaintiff used due diligence, and that 
he was unable owing to the delay in the supply 
of granite, or to the ordering of additional 
works, so to complete his contract, ard they 
said that the delay was occasioned by the 
plaintiff's negligence and default. 

They said that albeit a reasonable time in the 
judgment of the defendants' engineer, to wit, 
from 21st May, 1894, to the 7th July, 1894, was 
allowed to the plaintiff yet he did not proceed 
with the work in a manner satisfactory to the 
engineer, nor did he exercise such due diligence 
or make such progress as would enable the 
works in the opinion of the engineer to be 
efficiently completed in the time speci- 
fied, or in such reasonable extra time 
as was so allowed him, but did wholly fail and 
come into default in the performance of the 
works in terms of the contract, plans, conditions 
and specifications, whereupon, and only after fre- 
quent complaints and remonstrances, on 7th 
July, 1894, the engineer did, pursuant to the 
power conferred by paragraph (a) of the 16th 
general condition of the contract, on behalf of 
the plaintiff, lawfully enter upon the work, and 
take possession of and use the plant and 
materials belonging to the contractor, and prose- 
cute the work departmentally in manner therein 
provided, but at great additional cost and ex- 
pense to the defendants over and above the con- 
tract price, wherebv in terms of the si^id condi- 



83 



tiontaymoaey th.en due to the oontraotor in 
lopcct of such work, as he liad done and not yet 
\m pud for. as well as the said plant and 
mtteriaL became and are the abflolute property 
of the defendants, who remain heavy losers by 
the negligence and default of the plaintiff. They 
idmitted that they refused to pay any sum of 
money or delWer any of the plant or material to 
the plaintilL 
n&e replication joined issue. 
Hr. Koee Innes, Q.C., and Mr. Graham for 
plalntaS. 

Ht. Jnta, Q.C., and Mr. Webber for defen- 
dants. 

Aithni Eayner Burns, the plaintiff, deposed 
tliatbewaa a contractor residing in Cape Town. 
He tendered to do the work in question for 
£3J^14, and the tender was duly accepted. All 
the neoeasary conditions and documents were 
dnly ngned, and he atarted the work on the 
Uth November, 1893. Shortly after he com- 
raenoed certain alterations were made by the 
Cotmcil in the working plans. In December 
and January work was actively carried on. On 
tiie 9th January, 1894, the assistant engineer of 
theCooncil complained of the slow progress, 
and on the 90th January Mr. Gaimcross again 
complained. He (witness) explained that he 
getting on with the work as fast as was 
le. There was a difficulty about the 
carting, and it was not every team that could 
get up the hill with the loads of stone 
thas were being used. The Council had 
to deliver dressed granite to him at 
the works for the foundations. On the 
22nd January he had finished the con- 
crete foundation, and was ready for the granite, 
hut it had not been delivered by the Council ; 
the corner-stones were not there. Mr. Cameron 
was clerk of the works, and he consented to 
witness's proposal that in order to avoid loss and 
delay he should use brick piers pending the 
arrival of the comer-stones. The workmen 
were almost idle for several days, waiting for 
the granite, the last block of which arrived on 
the 6th February. Bven when it arrived the 
granite was not properly dressed, and witness 
had to get his own workmen to dress it. Other 
material for the chimney, to be supplied by the 
Coandl, was not delivered until the 19th April, 
whereas the whole contract was to have been 
finished b^ the 20th May. A certain flue was 
shown in the original plan. These plans had 
to be deviated from, as no provision had been 
made for ezcarations for the flue. The plans 
for tbese alterations had to come from Ger- 
Buuy, and pending their arrival the work was 
carried on at great disadvantage. Beceived the 
provisional plan on the 14th March showing the 



excavation, and then they began to cut away 
the concrete foundation accordlugly. The 
excavating for the flue was finished on the 4th 
April, when the building of the flue was com- 
menced. The Council had to supply the fire- 
bricks, but they were not delivered faced as they 
should have been. The Clerk of the Works 
insisted on their not only being faced, but 
rubbed smooth, even those that were to go out 
of sight. This was an expensive and slow 
operation. Pieces of granite for the flue were 
not supplied in time by the Council, and there 
was delay of five or six days. The 
aroh of the main wall was thus de- 
layed, and after the arch was up work 
went on, and by the end of March they were 
ready for the roof. In February the Town 
Engineer wrote on the subject of the chimney. 
Granite for the base -jf the chimney was not 
supplied by the Council until the 20th April, and 
even then it was not according to the plan. It 
was three times the size it ought to have been, 
and he had to have a special stage erected to 
receive it. For the engine beds he had to make 
large excavations, and these were not on the 
original plan. It a as only about the beginning 
of June that he first received instructions about 
the engine beds. These excavations were pushed 
forward as rapidly as possible. When the walls 
of the engine house, about the end of May, wore 
roof high, stone for coping was not delivered by 
the Council. The Council's engineer told him 
to get the stone himself from Kalk Bay, 
and it was on the way when he 
was stopped working. Certain door frames 
were altered by the Council no less 
than five times. For the chimney witness 
had to build with his own bricks to the height 
of 15 feet, and thereafter the Council were to 
supply the bricks. He foimd it impossible to 
get bricks to satisfy the clerk of the works, and 
it was agreed that they should use Hare's 
bricks, and it was then found that they could 
not be procured. He had correspondence with 
Mr. CaimoroBS, which resulted in witness land- 
ing 10,000 of Capom's bricks at the works. 
These were all condemned by the clerk of the 
works, who said that Mr. Caimcross should 
never have consented to the alteration without 
consulting him. Correspondence took place be- 
tween Mr. Caimcross and himself regarding the 
slow progress of the work. He replied that he 
was getting on with the works as fast as pos- 
sible, but that he was being interfered with in 
every possible way by the clerk of the 
works. The Mayor went to inspect the 
works, and witness was about -to ex- 
plain the difficulties he had with the clerk 
of the works when Mr. Caimcross stopped him 



84 



On the 7th July he was ousted from the control 
over the works, and the Council, he believed, 
proceeded to do the work departmentally. He 
reckoned that, suppoRing the Council furnished 
all the material properly and there were no 
further alterations, he would have finished the 
whole work in another twelve weeks. He 
calculated it would have cost him £1,000 to 
finish the whole of the work. He had received 
from the Council £1,778 Is. lid. He did not 
commence plastering because of the alterations 
from the original plans and other reasons. He 
had seen the works since he was ousted. They 
were not completed even yet, and fewer men 
were being employed by the Council than were 
employed by witness. He wrote to the Council 
four weeks after he was ousted, pointing 
out that money did not appear to be any 
object with the Council, judging by the 
manner in which they were proceeding 
with the work, and stating that he hoped he 
would not be held responsible. He also wrote 
stating he heard that the Council contemplated- 
accepting a tender for the plastering for £700 
from the same man (Mr. Pipes), who had pre- 
viously tendered to him to do it for £450. In 
short, he protested against the wastefid way in 
which the Council were completing the work. 
He hud suffered great loss by the action of the 
Council. They had taken away his plant, and 
he had spent between £600 and £700 of his own 
money over and above the £1,773 received from 
the Council. He was now without a penny, and 
had no plant, so he could not enter into any con- 
tract. 

Cross-examined by Mr. Juta, Q.C. : He had 
made a schedule in which he valued the work 
he had done on the engin(Miouse at £1,864 10s. 
He was asked by the Council to send in a 
schedule valuing the work he had done, so as to 
enable the engineer to measure up his work and 
pay him. The Council wanted to know how he 
arrived at his tender, and he sent them the par- 
ticulars (document produced). The Council 
objected to his first schedule and he sent in 
another. The tender was in two parts, for 
the chimney and the engine-room. The only 
thing that connected the two was the fine. 
(Witness was examined at length regarding 
the differences in prices submitted by him 
in the four schedules to the Council). He 
devoted all the money he received from the 
Council to the work, and about £600 to £700 of 
hia own as well. Robertson's had supplied 
cement to the amount of £61. They did not 
ask him for the money, because they knew he 
did not have it. Did not know that the Town 
Council had paid it. The Council guaranteed 
his accounts with Ardeme and Lithman. The 



Council had to supply him with bricks for the 
chimney when it had reached a certain heigh t, 
but he bought 4,900 bricks for the basement put. 
For tho: e bricks the Council charged him twice 
over. The clerk of the works condemned 
Capom's bricks. He had arranged with Capom*a 
when tendering for the supply of these bricks 
that they were to be approved of by the engi- 
neer. On these being condemned, it was agreed 
to substitute Hare*s bricks. Capom did not 
refuse to supply bricks because he (witnees) 
could liot pay for them. As a matter of fact, 
the clerk of the works and himself went to 
Capom *s, but could not get any bricks. There- 
fore they went to Brown's and got bricks, but 
Brown subsequently offended the clerk of the 
works, who wanted to condemn the bricks, but 
witness said they would have to stick to Brown. 
One of his principal g^evances against the 
Council was their delay in delivering the 
granite. They had to use Kalk Bay stone 
and brick coping instead of granite, because 
the granite was not delivered in time. This 
substitution delayed him. He could not go 
on with the brick work until the Kalk 
Bay stone was delivered. The boiler beds 
were an " extra," and delayed him in the general 
work. The boiler fines delayed the building of 
the walls. The alteration of the fine in Hie plan 
was a fundamental one. Started first laying^ 
bricks for the flue on the 4th April. He was 
paid on actual measurement taken of the work 
done. The bricks had to be cut and fitted by 
the contractor, but that did not mean the 
amount of cutting and fitting he had been 
obliged to do. They should have been 
delivered by the Council moulded to 
shape. The non -delivery by the Council 
of the granite for the comer-stones 
greatly delayed the work and caused much 
inconvenience. Witness deposited a sample of 
brick which the clerk of the works would not 
pass. It was not a fact that the reason why the 
bricks were not supplied by Caporn was that 
he (witness) could not pay for them. He esti- 
mated the stone work in a lump sum at £60. 
He did not remember how many cubic yards 
there were. He gave one estimate at £60 and 
another at £100. H e had never worked any of the 
mountain stone work before. He had not com- 
menced to dress the mountain stone.* Mr. 
Wignall told him not to get it. He ordered 
the doors and windows from Mr. Lithman. 
They were to cost over £200. Some of the roof 
work was included ; it would be about £25. He 
allowed £316 for plastering, and could have done 
it for £310. The lowest tender was £569. The 
plastering might have been altered when the 
man tendered. Messrs. Ardeme k Co. were 



85 



lueptng wood for bim. Witness asked the 
Couiidl for a suankntee for tbia wood on the Ist 
April He was not ready for fixing the wood 
M that date. Om May 8 tbe City Engineer 
wrote oomplaininic of tbe work not being 
ctrriedoat acoordins to specifioation. Subse- 
qwDt letters were alfio recei^^ed by witness as to 
fsnltf wood and as to delay in erection of the 
dumney. He had bad-experienoeof contracts 
in this ooimtry before. 



Be-examiiMd by Mr. Roae-Innes, Q.C. : Wit- 
bad the oontraet for the new street wall 
wbenhe bad some dispute with Mr. Wignall; 
lodthat diapote bad continued through the 
firaw&t eontract. He asked Ardeme k Co. to 
bold over the wood, and tbe reason he asked for 
the guarantee for the wood was that he only got 
bis n&mey froni the Council by "dribs and 
drabs." The last week's payment was barely 
eaAdent for wages, to say nothing of material. 
Witaeas was told by Mr. Wignall not to 
get the mountain stone ; and brick and 
l^aiter were afterwards substituted. The face 
bridLB proved to be the difficulty, as the clerk 
of works wanted them to be all exactly the same 
■iae. He oonld not manage this, as he pur- 
cfaased 38,000, and could not get 5,000 exactly 
alike out of them. The bricks were, howeyer, 
vp to sample. The engine-house and chimney, 
aooording to the amended plan, could not be 
separately completed, because of the angle in 
new fine. The fire bricks were part of the 
work for the new flues. There was con- 
timial friction on the part of the clerk of 
w^ocks. The delay caused by the new flue could 
ha-ve been got over by building an arch. He 
this to the clerk of the works, but 
clerk said, *« Get out, you fool, don't be talk- 
nonsense.*' Witness had several interviews 
with the Mayor and the Public Works Committee. 
At the meeting on the 5th July he heard the 
Mayor speak in his favour. Mr. Caimcross 
afterwards eame out and said witness would not 
berequhed that day. On the 7th July he 
the letter before referred to, dismissing 
from the contact. 



Alfred George Gray, builder, deposed that he 
had had great experience in taking out quanti- 
tiea He had been twelve months with Mr. 
Charles Treeman ; had had experience in 
Australia, and had had contracts himself. He 
had several times viewed the works in dispute. 
He would not have racked the walls back, but 
would have thrown an arch over, so that the 
wotk might not be delayed. He had gone 
thioogh the work done by Mr. Burns, and the 
statement produced was correct. The value of 
the masons' work done was £2,660. This did not 



include the carpenters' work. It would cost 
£160 to complete the chimney from where 
plaintiff left it 

Cross-examined by Mr. Juta, Q.C. : He had no 
experience of mountain-stone work ; but he 
calculated it at lOs. a foot This would be £13 
lOs. a cubic yard. The £160 he allowed was for 
labour only ; the bricks were to be supplied by 
the Council. 

James Roberts, bricklayer, deposed that he 
had worked four months for plaintiff. He left 
the latter end of June. Witness worked on Ihe 
new flues. He began on them early in April. 
The concrete at the bottom of the excavation 
had been completed. The two flues were each 
about three feet wide ; there was only room for 
one man to work in each flue, and it was 
tedious work. It was not necessary to cut and 
shape the bricks as directed by the clerk 
of the works. If the bricks had not 
been cut and shaped, the same work it took 
five weeks to do could have been done in one 
week. There was a delay of five or six days 
waiting for a piece of granite. As soon as the 
flues arrived at the junction, more men were 
put on. Witness only saw Mr. Caimcross once 
whilst he was working there. 

Cross-examined by Mr. Juta, Q.C. : Witness 
denied that Mr. Caimcross had ever complained 
to him of delay. They could not begin at the 
junction of the flues without the granite. The 
flue work could not be built until the granite 
was in. They worked as far as they could. 
Other men had not had to leave the work for 
want of bricks. Two men cut the bricks, and as 
the bricks were cut they had to be set ; so that 
no more than two men could work. 

Harry Hobson, bricklayer, deposed that he 
bad been employed on the works in dispute. He 
continued working there from March, 1894, 
until last week, when he left of 
his own accord. Witness saw the 
state of things as to the flues, 
in arch could have been put in instead of rack- 
ing the walls back. The work in the flues was 
very slow and expensive. Some of the work was 
unnecessary and ridiculous ; there was a lot of 
labour that was not required. After the plaintiff 
left in July the number of bricklayers was 
decreased. They had been stopped for want of 
bricks since plaintiff left but not in plaintiff's 
time. 

Cross-examined by Mr. Juta, Q.C. : The alter- 
ation in the flue did not cause the bricklayers to 
lose time. There was no stone on the works 
when plaintiff left. 

Francis Clark, carpenter, deposed that he 
worked on the building, beginning shortly before 
the plaintiff left Witness was employed on 



86 



thereof, and went on working two or three 
months after plaintiff left. There were twelve 
carpenters employed when plaintiff left, and 
that was a sufficient number for the work to be 
done. When the Town Council took over the 
work there were only nine. 

Gross-examined by Mr. Juta, Q.C. : They were 
never stopped for want of timber in plaintiff's 
time. 

George Mann, stonecutter, deposed that he 
was employed by the Town Council in February, 
ISH to dress stone for the building in question. 
Sometimes he was at the works and sometimes 
at the quarry. Witness heard what plaintiff 
said when he proposed that an arch should be 
built, but did not hear the clerk of works reply. 
This was in May, and about this time he was 
dressing stone for the base of the chimney. 

Harry Wildman, stonecutter, deposed that he 
had worked at the engine-house, setting granite 
for Mr. Burns. They had to cut some granite 
because it had been sent down unprepared. It 
was several days before the corner stones were 
sent, and this caused delay. 

John Henry Hoare, bricklayer, deposed that 
he had worked for plaintiff about three months 
on the electric light building. They were never 
delayed for want of bricks. He thought there 
were too many men working in the flues. They 
had been stopped for want of granite. They 
could have gone on with the flues if they had 
put in an arch. 

Cross-examined by Mr. Juta, Q.C. : The build- 
ing was stopped because of the flues. Two walls 
were not up in the middle of March. When he 
was not working on the flues he was working on 
the walls. It was not customary to build one 
wall at a time. 

Frederick Bdward Mittens, labourer, deposed 
that he was employed on the inside excavations 
of the building for the engine beds. One exca- 
vation was 8 feet, the other 2 feet deep. The 
clerk of the works stopped the excavation. 
Bight men were working there, and they were 
discharged. Witness was taken on again by 
the Town Council. 

Robert Thomas Marks, foreman of works, de- 
posed that he had occasionally visited the works 
in dispute. The labour required to finish the 
brick and stone work was according to his 
estimate— £160. The bricks supplied by the 
Town Council were not moulded bricks. 

This closed the evidence for the plaintiff. 

Walter Read, chief draughtsman in the office 
of the City Engineer (examined by Mr. Juta. 
Q.C), deposed that he calculated the quantities 
for the works. Burns submitted his first 
schedule of quantities, that worked out about 
£600 more than the contract price. This would 



have meant that Burns would have been paid 
before he completed the work. The last 
schedule submitted by Bums worked out all 
right. The Council guaranteed Bums's account 
with people from whom he obtained supplies, 
and had accordingly paid Lithman £80. The 
plans were prepared under witness's charge. 
The plan for the flue was given to Bums on the 
6th March. One plan for the engine bed in 
March, and another in April. The granite was 
delivered on the 19th April Photographs had 
been taken of the works at various times, show- 
ing the progress of the works, and on which 
Bums was paid his instalments. 

In reply to the Court, Mr. Juta said that there 
was a balance due to Burns when he was ousted, 
but the balance was now in favour of the 
Council, because the Council had exceeded the 
contract price in themselves finishing the 
works. 

Examination continued : Bums only built 
11 feet of the chimney (from the ground) 
in the eighty days or thereabouts that he could 
have gone on with it. The total height of the 
chimney was to be 115 feet. Could not say if 
Burns could not go on with t^e chimney until 
the flue was finished. The cost of finishing the 
chimney (from the stage Bums left it) worked 
out to £422 according to Bums's own figures in 
the contract. Could not say how much it 
actually cost the Council to finish it; but 
according to the specifications prepared by wit- 
ness, the cost of finishing worked out at £865. 
Bums could not possibly have finished the 
chimney, therefore, at his contract price. 

Cross-examined by Mr. Innes: Bums only 
allowed £100 for mounting stone to finish the 
chimney, whereas according to the specification 
and plan the stone, at 9s. per foot, would come 
out at over £500. Referring to Bums's schedule 
which would have involved his being paid too 
soon, this would be subject to the 25 per cent, 
always retained by the Council. Did not know 
if the granite had been all delivered by the 19th 
April. Did not say so in examination in chief. 
Cameron, the clerk of works, always measured 
up the work. Did not verify Cameron's figures, 
but took them as being correct in making out 
the plans showing where Bums was at different 
times, but on the 7th July, when Bums was 
turned off, his subordinate measured and found 
Cameron's figures correct. 

Arthur Ambrose William Carpenter deposed 
that he was subordinate to Read in the 
draughtsman's department. Witness made the 
plans showing Burns's progress from Cameron's 
measurements, but on the 3rd July he was sent 
by Cairncross to measure up, and he found 
Cameron's measurements were correct. 



r 



87 



Crott-extmined : Did no^ mean that he was 
ible to check Cameron's n^ures. Actually did 
not know if they were correot or not. 

Re-eximined : Meant tHat tlie plans he made 
from hiB m«i8iirement8 oorresfjonded more or 
iMwith thoee made from Cameron's measure- 
mentt. 
Tbomu WUaon CaimcroBS deposed that he 
wag the City Engineer and a member of the 
iBititBte. The tenders were separate, one for 
tiMbaiidinK and one lor the chimney. The two 
woriu were distinct, and the subsequent altera- 
tioaof the flue to the chimney did not involve 
ddiy to the buildings. The two works still were 
distinct. The proper thing to do would have 
bea to leave the fine till the last. Bums's ten- 
der for the chimney was £1,(H7, lower by £iOO 
than any other tender. A list of prices, in 
•eooidance writh custom, had to be submitted by 
BarM. The Council had had to pay £51 odd to 
Bobertaon's for cement supplied to Bums. This 
was paid after Bums was turned off. They took 
the cement over from Bums and paid Robertson 
for ik Did not tell Burns they had done so. 
Visited the works very frequently. Bums 
was not correct in saying that he was not 
tikere more than once or twice. Regarding the 
bricks, the original sample was obtained from 
Gap(H-n, who had supplied bricks of the same 
quality to the Council, without failure, for 
drainase purposes. Bums ought not to have had 
difficulty in getting the bricks, but he could not 
get them, and subsequently witnera approved of 
a sample submitted in substitution by Boms. 
The bricks supplied to this latter sample were 
eondamned by witness. Sent several people to 
the brickmakers with the object of helping 
Boms to obtain bricks. Btfras had to use 
his owm bricks up to a certain height. 
Had not attained that height when he was 
turned off, but the Council supplied him with 
brieka for the base so as to avoid delay. 

By the Court : 228 stones had to be supplied 

hf the Council for the building, and all but the 

■tones were delivered by the 6th January. 

eomer stones were supplied on the 27th 

FefamaTy. Bums could easily have gone on 

viihoot the comer stones. Granite for the 

^hinuiey was supplied to Bums by the 

time he was ready to ubc it. It was lying 

€B the works for a month, and Bums 

did not touch it. The work was practically 

■topped for a month. Granite for the chimney 

vas delivered between the 12th and 18th April. 

Boms cottld have had it earlier if he had t)een 

ready for it. He was not nearly ready with his 

brickwork on which to place the granite. Bums's 

plant wras about the most inferior plant witness 

Ikad erer seen on works of such a nature. The 



excavation inside the building for the boiler 
foundations could not interfere with the 
progress of the building in any shape or form. 
They could have given this extra excavating 
work to anybody else, but they decided to give 
it to Bums. The excavations went to a greater 
depth than the foundation, but that wou'd not 
retard the building. The excavation was more 
than two feet away from the foundation. The 
flue should not in any way have interfered with 
the progress of the work. If Bums had carried 
out his contract properly he would have been 
above the flue before the flue was decided on ; 
but as he was so low down with the building 
arrangements were made accordingly, and Bums 
was asked to wait for a couple of days, so that 
the flue could be worked in. During that short 
delay Bums might easily have employed all his 
men on another part of the works. Bums 
neglected his work from the start. Witness 
complained early in January of his slow pro- 
grew. The photograph (produced) of the flue 
must have been taken in March. That photo- 
graph showed that Bums had not even begun 
the brickwork on which the granite was to have 
gone. The whole chimney ought to have been 
finished in March. It was 100 days of the con- 
tract time. Bums sent the Council a letter on 
the 3rd February complaining of delay in 
delivery of the granite. I never heard until the 
previous day in court that Bums was delayed in 
the flue through non-delivery of granite. The 
chimney could have been conetructed inde- 
pendently of the flue altogether. Regarding the 
coping granite for the building, it was agreed to 
substitute brickwork for it. Before any stone 
whatever could have been required certain brick- 
work had to be done, and Bums had 2 feet 
more of this brickwork to do when turned off 
on the 7th July. Therefore could not have been 
delayed by non-delivery of stone for the coping. 
No stone had come from Kalk Bay. The 
Council had the stone in stock which they used. 
Witness had drawn up an account showing 
the expenditure of the Council since they took 
over the works. Called for tenders for ^e im- 
portant items. The Council got a discount off 
materials that Bums would not get. Also the 
Council imported its own cement, and Bums 
got the advantage of that. The account show- 
ing the state of affairs on 7th inst.. showed that 
the Council up to then had had to expend 
£130 15s. 6d. more than Bums's contract price. 
He considered that the non-paying portion of 
Burns*s contract was coming on when Bums 
was turned off. The lowest tender the Council 
received for the plastering was £569. whereas 
Bums only allowed £316 for this Iq his con- 
tract, 



88 



By the Oourt: It was admitted that the 
Council owed Bums the sum of £648 when he 
was turned off, but Lithman had since been 
paid £80, and Robertson £57, and the contract 
price had been exceeded, so that Burns on the 
7th inst. owed the Council £130 16e. 6d. He 
admitted that the value of the work done by 
Bums was £2,600 odd, and that he had paid 
£1,800 odd, leaving the balance due to 
him on the 7th July of £648 lis. lOd. 
Could not say if the Council subsequently had to 
pay for some of the materials included in 
Bums's work, which was worth the £2,600 odd 
he had mentioned. 

The Court requested Mr. Juta to furnish an 
account of what materials,' actually used by the 
plaintiff, had to be subsequently paid for by the 
Council. 

Examination continued: According to the 
expenditure of the Council since Bums was 
turned off, if Bums had been allowed to finish 
his contract he would have been a loser of the 
sum of £817. 

Cross-examined by Mr. Innes : The schedule 
of prices submitted with the contract had to 
correspond nearly with the contract. It was 
a common occurrence with contractors to sub- 
mit inaccurate schedules. The building was 
practically completed in November last. Wit- 
ness made up an account up to the 7th instant 
showing Burns owed the Council £130, but it 
was not a complete account by any means. 
The plant taken over from Burns was not 
allowed for. The account was not meant as a 
joke. The Council had supplied more plant on 
its own account, and Bums was charged with 
this on the account although he was not 
credited with the plant taken from him. 
It was a fact that the same labourers were 
employed on other works contemporaneously 
with Bums's works by the Council, but they 
always charged Bums*8 works and the other 
works separately when labour was ihus trans- 
ferred There were eight comer-stones required 
for the building, not six, as he had stated 
previously. Did not recollect any complaint 
being made of non-delivery of granite for the 
flue. Only heard it in court. He (witness) had 
stated that Chamberlain told him that Bums 
■ever ordered stone. (Letter was produced 
from Chamberlain to Burns apologising for the 
non-delivery of the stone). Witness thought 
that the chimney could have been finished in 
eighty days. Could not say how long the 
Council had taken to finish the chimney. 
Considered that under the contract the 
Council should have delivered the granite 
when Bums was ready. Granite for the 
chimney was not delivered till the 14th April, 



for the Hole reason that Burns was not ready 
for it The stone was all properly dressod. 
The Council, however, had to pay a man in 
May to finish the dressing of two of the stones 
which were not delivered properly by the Council. 
This did not delay Bums at alL The alteration 
in the flue from the original plan made the flae 
an entirely different affair. Regarding the evi- 
dence of Uie workmen that the flue was a lon^ 
and tedious job, he thought the workmen were 
too long over the work. From the 20th 
February to the 18th June sent uo letters of 
complaint to Bums. Made a thorough inspec- 
tion of the works more than once. Struck him 
there were too few men on the flues. Witness 
had the power under the contract to order that 
more men should be put on, but never did so. 
The responsibility of putting up an arch not oq 
the plans, as Burns had to do, would be with the 
architect and not the builder. Witness had the 
power to order any deviation or extra from the 
plans. Witness would not take the responsi- 
bility of making the arch — ^he preferred Buma 
to take that It would be better for Bums to 
build the flue first before proceeding with the 
chimney. The plan for the engine beds was 
given in April, but those beds would not inter- 
fere with the building. It was true that the 
clerk of the works once stopped the 
excavation as being a danger to the 
buildings. With regard to the samples of 
bricks, all they wanted was a brick 
of the same quality. They did not care where 
the bricks came from. The clerk of the works 
(Cameron) condemned the bricks bought by 
Bums from Capom. Bums then produced 
another sample, which witness approved of, but 
the clerk of the works condemned this lot again , 
)3ecause|they*were not up to sample. Capom and 
Howard's bricks were supplied to the Council to 
finish the work, and they were satisfactory. The 
door frames were only altered once. 

By the Court : There was about six daya' dela}"* 
in supplying granite for the foundation. Buraa, 
however, could have gone on with other work in 
the meantime. When Bums left the work he 
had done £648 worth of work more than waa 
paid for by the Council. The materials for 
which the Council since paid had been ordered 
by Bums, but not used. 

John Robert Wignell, Assistant Engineer to 
the Town Council, deposed that he was almost 
daily on the works. He was practically in full 
charga of the building. Agreed with Mr. Cairn- 
cross that the engine bed excavations had 
nothing whatever to do with the building. 
Bums carried on the works very badly, Ha4 
not enough plant. 



r 



89 



By the Court : Agreed with the whole of Mr. 
CtbncroeB's evidenoe, wltli the exception of one 
or two minor points. 

SzAmination oontinued : All the granite 
wu delivered by the 19th April, and Boms was 
not ready for it till aboot twelre or fourteen 
days afterwards. 

CroaB-ezamined : Plaintiff was only delayed 
fii dayaaltogeiher by the Oouncil. The altera- 
tion ik the floe and the engine-bedB were also 
delayed. Gaye Bums the order to make the 
engine-bed actually after the original contract 
time had expired. Had not made any oalcula- 
iioB aa to what delay was occasioned by Bums 
■ot having bricks at hand. 

Arthur Capom, brickmaker, said that Bums 
oame to him at aix>at the time he made the con- 
tract aad asked about 120,000 bricks, but gave 
ao Older. He oould not get bricks to sample, 
beeaose he made no preparations beforehand. 
Sodibricka required long notice. Refused to 
•apply bricks to Buraa after 20th March. The 
icaaoa was that Bums ordered 32,000 bricks ; 
14M)00 were delivered and condemned by the 
elerkof the works. He fell out with Bums, and 
the latter nerer paid him. 

Oroes-examined : The clerk of the works was 
fcry exacting and strict. Even Mr. Byworth, 
the Town Clerk, told witness that the clerk of 
the works had no right to make a complaint he 
had made aboot certain biicks. 

By the Coort ; if in November Bums had 
ordered all the bricks he wanted, he would have 
npplied them all in time for Bums. 

Carl Eric Albon, of the firm of Lithman Sc 
Co., said there was a delay in the deliveiy of 
certain door frames or windows to Bums because 
they wanted payment or a guarantee. 

David Cameron deposed that he was clerk of 
the works (of the Town Council) at the 
works. Had had considerable experience as a 
derk of the works. Bums went about his work 
veiy badly, aad was not a practical man. Wit- 
BflSB asBiBted in laying out the works because 
Boms did not seem to be capable of doing it. 
Burns was short of bricks all through the job. 
Witness went to Capom's severhl times to try 
and get bricks for Bums. Witness never pre- 
vented him from going on with the work. It 
was not tme that he told Bums to stop doing 
any work nntil he finished the flue. When the 
gianite was delivered Bums was not ready for 
it It t(x>k six weeks to do the flue, but it 
might haTo been done in eighteen or twenty 
days. No more cutting of bricks was necessary 
beeaiae of the alteration in the construction of 
the fine. Beckoned Bums's plant to be worth 
tt5 or £70. Some of it was returned to him— 
pcriiapa £18 worth. 

N 



Cross-examined: Would not say that Bums 
should not have taken on the job at all. Had 
rows with Bums but never threatened to assault 
him. Struck one of Bums's carpenters once. 
Had never stmck any other man in his life. It 
all depended whom he was dealing with whether 
he was short-tempered or not. Bums should 
have gone about the flue differently. Witness 
did not suggest this to Bums as it was not his 
(witness's) business. Bums need not have 
stopped working on the building because of the 
flue. 

Mr. Juta put in a rough accoimt, amended to 
date, showing £146 was due to the Council from 
Bums. 

Mr. Innes was heard for the plaintiff. Mr. 
Juta was not called upon. 

Judgment was delivered for the defendants 
with costs. 

The Chibf Justice said : This case is only one 
of many in which persons, in their anxiety to 
obtain contracts, tender to do work for very 
much less than the tme value of the work. In 
the present case it seems to me that the contract 
entered into between the plaintiff and defendants 
was a most one-sided contract. It is entirely in 
favour of tbe defendants, It gives them full 
power and control, and the power to enter on 
the works and take them entirely out of the 
hands of the contractor, in case he does not in 
the specified time, fulfil his contract. Now I 
quite agree with Mr. Innes that the g^unds for 
exercising this power must be reasonable. 
Where the Town Council themselves order 
alterations or are guilty of some delay, such 
circumHtanoes have to be considered and taken 
into consideration in reference to the time 
taken in completing the workF, and I agree 
also with Mr. Innes that under such circum- 
stances the City Engineer should not be the sole 
judge, but that it is for the Court after- 
wards, considering all the circumstances 
of the case, to see that a reason- 
able time was allowed to the contractor 
to fulfil his work, bearing in mind the altera- 
tions ordered and the causes of delay in the 
work. But I am perfectly satisfied in this case 
that neither the alterations nor the delay caused 
by the Council in any way caused the very long 
delay of which the contractor was guilty. The 
non-supply of the granite caused a delay, at the 
utmost, of only six days, but as to the flue, on 
which so much stress is laid by Mr. Innes, I am 
perfectly satisfied that the alteration need not 
have delayed the work for a single day. At all 
events it did not delay the work 
from the 7th May to the 7th July. 
The plaintiff himself did not take the 
ordinary precautiops which might have been 



90 



expected from a oontractor who contracts in so 
large a way. Mr. Capom, from whom he got his 
bricks, says that if the plaintiff had ordered his 
bricks at the time he entered into the contract 
the bricks would have been avaiiable in ample 
time. But this the plaintiff did not do, but he 
entered upon the work and got his supplies in a 
hand-to-mouth manner, and Mr. Capom having 
other customers to supply was not able to give 
the requisite number of bricks to supply Mr. 
Burns, and as a matter of fact the absence of 
the bricks had very much more to do with the 
delay of the work than anything else. Even 
after the granite had been delivered there was 
delay on the part of the contractor. 
Under these circumstances I am of opinion 
that the Town Council was justified on the 7th 
July in entering on the works* They had given 
the plaintiff notice of the delay in January, in 
February, and in May, and again in June, and 
on the 7th July they were justified in entering 
upon the works, and it also appears to me to 
have been the very best thing for the contractor 
himself. If the Town Council had not entered 
on the works, I am satisfied that the contractor 
would have been a heavy loser. Looking at the 
tenders I find the highest tender was £7,100. 
The plaintiff's tender was only £3,800. Well, if 
we teke a fair average of the different tenders 
it would be about £5,000, and that is the 
amount the plaintiff ought to have tendered 
for the work to make any money out of his con- 
tract. But in his anxiety to get this contract, 
he tenders at an amount for which he could not 
possibly have performed the work. Even a man 
of means, with facilities for getting discounts 
and so on that the plaintiff did not have, 
would have been a loser, but the plaintiff unfor- 
tunately was without means, and consequently 
had a great many difficulties to contend with 
in carrying out the work. But that is his mis- 
fortune, and all the Court has to do is to con- 
sider the case on its merits. Under these circum- 
stances, judgment must be for the defen- 
dants with costs. There is no claim 
in reconvention ; had there been such a claim, 
it would have been a question of what the Town 
Council was entitled to recover from the plain- 
tiff. 

Mr. Justice Buchanan : I concur. The only 
doubt I had was whether the Town Council had 
reasonable cause for entering on the worlu on 
the 7th July, but after the explanation given by 
the Councirs officers, I think the delay was 
attributable more to the impecuniosity of the 
plaintiff than to delay on the part of the Coun- 
cil. 

^r. Justice Upington also concurred. 



[Plaintiff's Attorneys, Messrs. TroUip Sc 
Hutton ; Defendants' Attorneys, Messrs. Fair- 
bridge, Ardeme k. Law ton.] 



SUPREME COURT- 



[Before Sir J. H. DB Villibbs, K.C.M.a. (Chief 
Justice), Mr. Justice Buohahan, and Mr. 
Justice Upington, K.C.M.G.] 



He BOWB'B INBOLVBNT SSTA.TB. { Peb ^th. 

Mr. Shell, on behalf of R. M. Ross Sc Co. and 
other creditors, moved for the appointment of a 
provisional trustee, with pow r to carry on the 
brick-making business formerly carried on by 
the insolvents, pending the election of a troatee. 

The Court granted the order as prayed, and 
appointed Mr. Haaell provisional trustee with 
the powers asked for. 



DICKSON V. DICKSON. 



I 1895. 
) Feb. 26th. 

This was an action for restitution of conjugal 
rights, failing which for divorce, instituted by 
the plaintiff against his wife, on the grounds 
of her malicious desertion. 

The declaration alleged that the parties were 
married on the 8th August, 1889, and that the 
desertion took place on 81st May, 1898. 

Mr. Watermeyer appeared for the plaintiff. 

The defendant was in default. 

Spencer Dickson, the plaintiff, deposed that 
he was a salesman in Cape Town. Was married 
to the defendant on the 8th August. 1889. He 
and his wife were both under age at the time, 
and there was an agreement that his wife 
should remain with her mother until he was in 
a position to provide a home for her. For about 
ten or eleven months he called on her, but her 
mother then objected to any further calls. Her 
mother did not approve of his going out of an 
evening by himself, and his wife said he had 
better not call on her any more. He continued 
to meet his wife, but out«ide the house. Did 
not cohabit with his wife after marriage. Last 
saw her in December, 1891, and attempted a 
reconciliation, but, as before, she referred him 
to her mother. On the 31st May, he received a 
letter from his wife, saying she was leaving for 
England, did not intend to return, would never 
live with him, and that he would find 
certain presents in the cloak-room at the Cape 



§1 



TownSUtioB. 'Before frlie left for England he 

vntetoheTBie^eral times, attempting to bring 

•lKNLtaTeooncilia.tioxL, Y^jxt ^without success. 

Xbe wltnesB "wwlb queetioned closely by the 

Chief J\stice as to tli.e reason, of these strange 

reUtiong, and it ^as elicited that there was a 

MdnctionbetoTe maTriase, a child (now dead) 

being bom on the 2lBt August, thirteen days 

titer the marriage. Sis ^wife's father lived at 

JdhmnefebTKTs at the time, and witness believed 

he was fitiil there. The mother wished the 

msiriage to be kept secret, and all the parties 

acted acooidingly. He could give no farther 

explanation of the mother^s objection to his 

calls than that there was unpleasantness owing 

to his going ont alone in the evenings. 

The Ghiet Justice aaid : It is a strange case, 
but at the same time there is nothing before the 
Comt to show that the plaintiff is not entitled, 
at aU events, to compel his wife to come back to 
bim. But there mnst be personal service of the 
order, and there mnst be a tender to the wife 
of the means whereby she can come back. If 
Ae has any grounds for refusing to come back, 
she will still have an opportunity of urging 
those groonds, and the plaintiff must be pre- 
pared with some further and more satisfactory 
cTidenoe on the return day as to the grounds of 
his wife's refusal to cohabit with him. The 
Coori now grants a decree of restitution of 
eonJQgal rights, the defendant to return to the 
plaintiff on or before the 15tii April, failing 
irhich, a rule nisi will be granted calling on 
her to show cause on 1st May why a decree of 
diwoiee ^ould not be granted, satisfactory 
crvidenoe to be forthcoming on the return day 
tbat the plaintiff has offered to provide the 
neeeaeary means to enable the defendant to 
return . Personal service to be effected. 
[Flaintiff^B Attorney, A. H. McLeod.J 



BMUTS'S TBUBTEKS V. VAN ZYL'S 
SZBCUTOBS. 



I 1895. 
J Feb. 26th. 

Receipts — Action to compel delivery. 

This was an action to compel the defendants 
to render dividend receipts and pay £10 
damages instituted by Emile H. van Noorden 
■ad Jan H. Zoer, in their capacity as trustees 
of the insolvent estate of Jacques 8muts, 
against Susannah E. van Zyl and Pieter M. Q. 
vmn Zyl, in their capacity as executors testa- 
mentary of the estate of the late Gideon van 
Zyl, and also individually. 

The declaration alleged that Jacques Smuts 
was at the date of his insolvency indebted 
amongst other debts in the sum of £800 under 
a bond originally for the sum of £1,400, passed 
in favour of the defendants as executors. 



That the bond had before that date been ceded 
by the defendants as collateral security for the 
payment of a loan of £1,260 taken up by them, 
and the bond was proved as a debt of £800 
against the insolvent estate. 

The amounts of £32 3s. 4d. and £176 16s. lid. 
were awarded by the plaintiffs, as trustees, to 
the defendants, as executors, as dividends in 
respect of the debt, and the accounts awarding 
the said sums to the defendants as executors 
were duly confirmed by the Supreme Court. 
The said amount of £32 3e. 4d. was duly credited 
with the knowledge and consent of both 
defendants in account between the first-named 
plaintiff and the estate of the late Gideon van 
Zyl, and the said amount of £176 16s. lid. was 
likewise duly credited with the knowledge and 
consent of both defendants in account 
between the said plaintiff and the second-named 
defendant, the two defendants being the only 
persons interested in the said amounts under 
the will of the late Gideon van Zyl. 

That the defendants wrongfully and unlaw- 
fully failed after lawful demand to make and 
render due receipts satisfactory to the Master in 
acknowledgment of the receipt of the said 
dividends from the plaintiffs, who have been 
called upon by the Master forthwith to file such 
due receipts, but by reason of the defendants' 
said default the plaintifiEs have been and are 
unable to comply with the Master's demand. 

The plaintiffs in their capacity claimed : 

(a) An order compelling the defendants in 
their capacity forthwith to make and render due 
receipts or a due receipt for the said dividends 
of £32 3s. 4d. and £176 16b. lid., or £208 Os. 3d. 

Cb) Judgment against the defendants jointly 
and severally de bonis prapriis in the sum of 
£10 as and for damages. 

Ce) Other relief and costs de bonis propriis. 

The defendants in their plea denied that the 
amount of £32 Ss. 4d. was with their knowledge 
and consent credited in acoount between the 
first-named plaintiff and the estate, and they 
said that the said amount was still owing to 
them. They admitted that they were the only 
persons interested in the sums in question under 
the will of the late Gideon van Zyl. They did 
not admit that the amount of £176 16e. lid. was 
credited as alleged. 

They said that in or about 1890 the second- 
named defendant, acting with the full know- 
ledge and consent of the first defendant, agreed 
with the first-named plaintiff, who was acting 
on behalf of himself and his co-trustee, to pur- 
chase from the plaintiffs certain two pieces of 
land belonging to the estate of the said Smuts 
for the sum of £200. It was specially agreed 
between the parties as a condition of the said 



d2 



^ontraot of sale that the dividend coming to 
the estate represented by the defendants should 
be accepted in satisfaction of the purchase 
price. 

At the time when the said agreement was 
made, the estate of Van Zyl was the only pre- 
ferent creditor having a claim against the insol- 
vent estate of Smuts, and the defendants were 
the only persons interested in any dividends 
which might become payable in respect of such 
claim. 

Thereafter the plaintiffs passed transfer of the 
said land to the second defendant, in terms of 
the said agreement. 

Before action brought the defendants signed a 
receipt, in due form, in favour of the plaintiffs 
for the sum of £175 166. lid., being the dividend 
as aforesaid, and they transmitted the same in 
a letter in which they informed the plaintiffs 
that the receipt was sent subject to and in 
terms of the agreement aforesaid. The plaintiffs 
wrongfully refused to accept the said receipt, 
and returned it to the defendants. 

The defendants admitted that the plaintiffs 
had been called upon by the Master to file due 
dividend receipts. 

The plaintiffs, in their replication, admitted 
the purchase by the second-named defendant 
from the estate of Smuts, and that it was agreed 
that the dividend coming to Van Zyl's estate 
should be accepted as a payment on account 
of the purchase price, and tiiey admitted that 
the defendants had tendered a conditional 
receipt for the second dividend of £175 166. lid, 

Mr. Juta, Q.O., and Mr. Watermeyer for the 
plaintiffs. 

Mr. Bose-Innes, Q.C., and Mr. Graham for the 
defendants. 

Emile van Noorden deposed that he was one of 
the trustees in the insolvent estate of Jacques 
Smuts. The first account in the estate was pre- 
pared in March, 1891, and submitted in June, 
1891. He had various transactions with Mr. 
Smuts on behalf of Van Zyls. In August, 1890, 
he had a settlement between the Van Zyls and 
himself. They went through the books to- 
gether ; a balance of £124 odd was arrived at, 
for which witness received a promissory note: 
In that settlement the dividend of £32 ds. 4d. 
appeared. In December, 1890, he sent certain 
documents to the Van Zyls for signature; 
amongst others a receipt for dividends. Some 
correspondence took place between Smuts and 
himself, and finally the receipt for £176 was 
signed by the defendant. 

Examination continued : He sold certain land 
to the defendants for £200» They were the 
only persons interested in it. The ground was 
now much more valuable. The liquidation and 



other expenses were paid by witness on behalf 
of Van Zyl. The Master had to institute pro- 
ceedings against the defendants in order to get 
receipts, and witness had been put to an 
expense of £10 or £11 on account of that. 

Cross-examined : The settlement took place 
in 1890, in the presence of Mr. Van Wyk 
and Mr. Van Zyl. Mr. Van Wyk was now dead. 
The £82 was included in the account settled in 
August, 1890. In the account (produced) 
rendered to the defendant at the date of settle- 
ment the £32 did not figure, but it did in pencil 
in the book (produced). There were many- 
other items also which did not appear in the 
account. The 10 per cent, commission shown 
in the account was for auctioneer's feee 
in the sale of the land to the defendnnta. 
The pencil entry of the £32 was made 
at the time of the settlement. The 
liquidation account showed that the detendants 
were entitled to the £32, and he would swear 
that he showed that account to the defendant. 
Besides, they saw the book with the £32 shown 
in pencil. 

The Chief Justice : What proof had the de- 
fendants that you had credited them with the 
£32 besides this pencil note ? 

Witness : They never asked for any farther 
proof. 

Cross-examination continued : Did not bank 
the moneys he received as trustee in the estate 
separately. He got the receipt for the £32, and 
he sent it in to the Master with words of his 
own written underneath after he received the 
receipt. Put it in to the Master's hands as a 
receipt signed by the two executors. He thus 
tampered with the receipt, but thought it waa 
not wrong to do so. Supposed the stamp was 
affixed to the receipt after he had written the 
words underneath. 

Mr. Innes read the evidence of the late Mr« 
Van Wyk, taken on commission, which stated 
that it was only in January, 1892, that the 
defendants first discovered that the £32 was due 
and that their efforts to get it out of Mr. Van 
Noorden had failed. 

Witness reiterated that the £32 was included 
in the 1890 settlement and that Mr. Van Wyk 
was wrong. Regarding the receipt for £175, 
the conditions of the sale were submitted to 
Van Zyl. Van Zyl said he had no money to pay 
for the land, but witness told him all he would 
have to pay was the difference between the 
purchase price and the dividend due to Van 
Zyl, and that he (witness) would advance it. 
No mention was made of any amount. He did 
not tell Van Zyl that it would cost him nothing 
except the costs. Afterwards he arrived at the 
amount of £85 18s. lOd. as due to him. Hs 



H 



RDdered the dbfendAnts tax acoomit ehowing 
thiiibai he liad no press copy. He usually 
kept t prow copy of liis aocounte and letters, 
bathe was at Plqaetbers^, and. did not have his 
oopying-iiTesa with. liim. In June, 1893, he 
wrote to the Master, aayinc; that the dividend 
WIS made over to limi by tlie defendant. 

Re-examined : Never acted as the agent of 
tiie Van Zyla. Begardin«; the £32, the first 
liquidation aooonnt was duly published. The 
£130 given by the Van Zyls in promissory notes 
wua ^al eettlement of eyerything between 
himielf and Van Zyls, and that was why no 
aoooonte were submitted. The Van Zyls never 
dicpnted anything ; tbey always asked for time 
ia whiich to pay ttie promissory notes for £120. 
Bj the Court : He was surety for the bond 
paned by Van Zyl in favour of Mr. Jones and 
thelatelir. Fairbridge, and he charged 5 per 
oonunisBion for being security. Did not know 
ii the estate was solvent at the time. They 
eame to him in IB85 for £403, which he advanced. 
Peter Marthinus G. van Zyl, the defendant, 
nid he had bad many transactions with Mr. 
Van Koorden. It was not true, as stated by 
Van Noorden, that in Augast, 1890, he 
came up to Gape Town and had a settlement 
with him. He came, with Mr. Van Wyk, to 
Cape Town in 1892. Van Koorden asked him 
if he had got any money ; witness said no, 
and Van Noorden replied that if he did not 
pay him he would summons him the next 
monung. Witness and Van Wyk then went to 
tbe Master's Office and looked at accounts. 
r. Van Wyk then found that the sum of £82 
dividends was due to the estate, and that 
the first they ever heard of it. They 
went back to Van Noorden and asked him for 
thm dividend. Van Noorden said he had 
paid it into Smnts* estate. Van Wyk asked him 
why, but Van Noorden did not reply. Sub- 
sequently Van Noorden summoned him for £120. 
Mr. Innee said that that case was withdrawn, 
and Hbe £120 was still unpaid. 

Examination continued : Referring to the 
purchase of the land for £200, witness said Mr. 
Van Noorden asked him to take the ground. 
Witnen replied that he had no money, but Van 
Noorden said he would help him, and that it 
would only cost him £30— expenses. Mr. Van 
Koordoi said he would advance this sum 
and take a mortgage bond for the amount. 
Afterwards he gave Van Noorden a power 
of attorney to pass a bond, and subsequently 
he receiTed the transfer of the land, and a 
bond of £86 lOs., instead of the £30 odd, was 
pasMd in favour of Van Noorden. Had never 
lecdved an account from Van Noorden showing 
bow the £86 10b» was arrived at. 



Cross-examined : The purchase price was 
£200. Had never bought property before. Did 
not know anything about Government dues to 
be paid by purchasers of land. Knew that Van 
Noorden made an account, showing that witness 
owed £120, but did not go into the account when 
he gave the promissory note for that amount. 
The reason why he gave Van Noorden the 
receipt for the £32 was because he was afraid he 
would be summoned again for the £200, the pm-- 
chase price of the land. Van Noorden always 
threatened to do this if he did not sign the 
receipt for the £32. 

By the Court : £200 was to be paid for the 
farm, but no cash was to pass. Mr. Van 
Noorden said that anything that had to be paid 
over and above the dividends due, together with 
the costs £32, he would advance and take a bond. 

Jacob John Henry Smuts deposed that Mr. 
Van Noorden came down to the farm about the 
sale. Witness made a bid of £200, but it was 
not accepted, and after the sale Mr. Van 
Noorden tried to get Mr. Van Zyl to take over 
the ground. Van Zyl was his father-in-law. 
He heard the negotiations, and he heard Van 
Noorden tell Van Zyl that it would cost 
within a couple of pounds of £30 for the 
costs, and that he would advance it and take a 
bond. Heard Van Zyl distinctly say, when he 
signed the power of attorney in blank, that the 
costs were not to exceed the £32. 

Cross-examined: Knew what the expenses 
were on such purchases of farms. Believed that 
Van Wyk objected to the bond of £86. The 
agreement was that it would not exceed £32. 
Witness thought that the bond should never 
have been passed. 

The Court granted absolution from the in- 
stance, with costs de bofiis proprihs against the 
plaintiff. 

The Chief Justice said: This action should, in 
my opinion, never have been brought If it is 
said that it is brought because the Master in- 
sisted upon having the defendants' receipts, 
then the action should not have been persisted 
in when the Master withdrew his objection. 
Now it appears to me that this action is 
really brought by the trustees on behalf of 
Mr. Van Noorden in his individual capacity. 
So far as the trustees are concerned, they have 
absolutely no interest in the affair. It is an 
action to compel the defendants to give 
receipts for two amounts— £176 16s. Ud. and 
£32 36. 4d. As to the first of these items, it is 
alleged in the declaration that it was duly 
credited with the knowledge and consent of 
both defendants in account between the first- 
named plaintiff and the second-named de- 
fendant in the estate of the late Gidepn van 



94 



ZyL But there is no evidence whatever 
that the £32 3s. 4d. was so credited. 
There is a book kept by Van Xoorden 
in which this amount appears. He says 
he showed this book to Pieter van Zyl, but Van 
Zyl denies having seen the book ; but no account 
was submitted, as it should have been, to Van 
Zyl showing this £32 38. 4d. to be credited. In 
no sense, therefore, can it be said that this 
amount of £32 3s. 4d. has ever been paid to the 
defendants, and as there is no evidence that it 
has been paid the defendants cannot be ex- 
pected to give a receipt. Then as to the £175 
16s. lid., we find that Mes8rs.Fairbridge k. Ardeme 
wrote to the defendants informing them that 
the Master insisted upon having defendants* 
receipts, and two forms of receipts were sent to 
the defendants from which they could select. 
They selected one and sent it duly signed, audit 
was an unqualified receipt. The receipt is signed 
by both defendants, but the letter en- 
closing the receipt says that it is 
sent on condition that it was acknowledged 
as full settlement of the purchase price 
of the land, and that the receipt would not have 
been signed but for the fact that they were afraid 
of Van Noorden's threats. The trustees there- 
upon sent back the receipt. Theymade no attempt 
to go to the Master and submit the receipt to 
him. Now I quite agree with Mr. Juta that it 
would not have been right on the part of the 
trustees to submit to the Master the receipt 
without the qualifying letter ; but I am satis- 
fied also, as far as the Master was concerned, 
that if the letter had been shown to 
him he would still have considered the receipt 
sufficient, because there is no denial of the 
payment of the dividend, and the payment of 
the dividend was all the Master wanted. So 
there was no qualification whatever of the 
receipt to the extent, at all events, that the 
dividend had been paid. Now, after the 
evidence that has come out, I am not prepared 
to say that this is not a condition which the 
defendants should insist upon, because as 
between them and the trustees there was a full 
settlement. There had been a full settlement, 
the trustees had received their £200 
in full before the 28th October, 1893. 
Therefore, when the defendants wrote to the 
trustees on that day that their receipt was to 
be accepted as the settlement for the purchase 
of the land as between the trustees and them- 
selves, they were justified in claiming that it 
was a full settlement. No doubt, as between 
Van Noorden and the defendants, it was a 
condition which Van Noorden could not accept, 
but for this Van Noorden has himself to blame 
in having mixed up his two capacities, 



that of trustee and his private capa- 
city. This action, I consider, has been 
brought by the trustees to enable Van 
Noorden to get certain receipts. >'ow as 
to the bond for £85 it will be a question in a 
further action whether the £32 3s. 4d., forming 
portion of that amount, has been paid or not. 
At present there is no evidence that it has been 
paid, but if it should turn out that the £32 
36. 4d. has been paid I strongly advise the de- 
fendants not to coutest the case but to at 
once settle up the full amount of £85 with- 
out further action, so as to avoid further 
expenses between the parties. In the 
present action I am of opinion thai 
there should be absolution from the instance 
with costs de honU propriis against the plaintiifs. 

Their lordships concurred. 

Mr. Innes asked for defendants' witnesses* 
expenses. 

Mr. Juta opposed. 

The Chief Justice, in allowing the expenses of 
one of the defendants, commented on the action 
of Van Noorden iu falsifying the receipt 
received by him from the defendants before sub- 
mitting it to the Master. 

[Plaintiflfe* Attorneys, Messrs. Fairbridge, 
Arderne k Lawton; Defendants* Attorney, 
Q. Montgomery- Walker. J 



SUPREME COURT 



[Before Sir J. H. db Villibbs (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
Upington, K.C.M.O.] 



8IM0N8 V. SIMONS. ] Peh^ ^h 

This was an action for divorce instituted by 
the plaintiff against her husband on the grounds 
of his adultery. 

Mr. Buchanan for the plaintiff. 

Defendant in person. 

Johanna Clementina Simons, the plaintiff, 
deposed that she was married to the defendmnt 
on the 10th February, 1891. There was one 
child. They lived happily together up to March, 
1894, when her husband deserted her. They had 
had no quarrel, and there was no apparent 
reason for his desertion. Subsequently she dis* 
covered her husband in a house in Gore -street 
with a woman he was living with named 
Christiana Geling. Witness was now in service 
with Mrs. Fraser. 



95 



Uefenduit Bmid th^t tlie desertion was on hia 
wile's part. She left liiai ^vrithout his knowledge 
•ad he found her at her father's house. She 
RfoKd to retum to him. 

WitDeea said tbat w^mB not true. Her husband 

dnnk a great deal and. she had to pay the rent 

of tkehooee. She w&b therefore obliged to go 

hoiM to her father. 

Behndant oontiniied that he had seen her out 

atu^t at Sea Point ^walking with a man. Had 

ako tten her at other times with men. He 

idmitted that he had committed adultery. 
The Court granted a decree of divorce with 

corts, plaintiff to have the custody of the child 

of the marriage. 



E06KB8' BXBCUTOBS V. JE880P. | Pej)^^27th 

Rtnt — ^Defence — Failure to execute written 
Wee — ^Repair?. 



This was an action for £31 lOs., instituted by 
Bichard Yillet and Alfred Harris Warmesley, in 
Uieir capacity as the executors of the late Eliza- 
beth BogerB, against Charles Jessop. 

The declaration alleged that the late Elizabeth 
Bodger was at the time of her death the regis- 
tered owner of certain immovable property— to 
wit, a shop and land at Green Point. The said 
property is still registered in the name of the 
deceased, and is administered by the plaintiffs 
as portion of her estate. 

In or about October, 1894, the plaintiffs, acting 
in their capacity, let to the defendant, and the 
latter hired from them, the said property at a 
rental of £10 lOs., payable monthly, from 15th 
October, 1891. 

On the 15th October, 1894, the plaintiff entered 
mto occupation of the property, and has con- 
tinned to occupy it since that date. 

Tbat there is due to the plaintiffs as rent the 
sum of £31 10a., being from 15th October, 1894, 
to 14th January, 1895, which sum the plaintiffs 
claimed with interest a tempore marce^ and costs. 

The defendant in his plea said that on or 
about 4th October, 1894, he agreed to hire, and 
the second-named defendant (Warmesley) 
agreed to let the premises at a monthly rental 
of £10 IQs. for a period of twelve months from 
15th October, 1894, with the option to the de- 
fendant of a renewal for a further period of 
twelve months at the same rental ; that there 
AoQld be a written lease between the parties 
eontaining the aforesaid conditions ; and that 
in coQKideration of the said lease the plaintiffs 
would effect certain repairs and alterations— to 
Fit ooQstrqct a certain drain to carry off the 



kitchen water, to erect a certain gate at the 
side of the premises, and to effectually 
strengthen the supports to a certain tank in the 
rear of the premises. 

He said that the plaintiffs had refused and 
failed, though requested, to carry out their part 
of the agreement, and that they refused to enter 
into the written lease, and to effect the repairs 
and alterations. 

He admitted that provided the plaintiffs 
carried out their part of the agreement, the sum 
claimed by them was due and payable ; that he 
was willing to pay the same; that he had 
tendered, and hereby again tendered, the rent 
provided the plaintiffs were ready and willing, 
and offered to abide by and perform the terms 
of their agreement as alleged. 

The defendant claimed in reconvention that 
the plaintiffs be ordered to enter into a written 
lease containing the conditions above referred 
to, and effect the repairs and alterations, the- 
defendant tendering the sum of £31 lOs. pro- 
vided the plaintiffs performed their agreement. 

The plaintiffs excepted to the defendant's 
plea on the grounds that it afforded no defence 
to their claim : 

1. Inasmuch as the defendant alleged that 
there was an agreement entered into between 
himself and the plaintiff Warmesley, where- 

- under he claimed the right to resist the plain- 
tiffs' claim, whereas it was not alleged that the 
plaintiff Warmesley had authority to act, or 
purported to act, for himself and his co- 
executor, or for either of them on behalf of the 
estate. 

2. Inasmuch as the defendant admitted that 
he had had the use and occupation of the 
premises, and was not justified in law in refusing 
to pay therefor unless a written agreement be 
entered into, even assuming that the allegations 
in the plea were true and correct. 

The replication joined issue. 

Mr. Searle. Q.C., and Mr. Watermeyer for 
plaintiffs. 

Mr. Molteno for the defendant. 

After argfument on the exceptions, the decla- 
ration was amended by alleging that both 
plaintiffs, and not Warmesley alone, agreed to 
execute a written lease. 

The rent being admitted, the Court held that 
the onus was on the defendant to prove the 
agi'eement as to entering into a written lease. 

The defendant, Charles Henry Jessop, deposed 
that he was a shopkeeper. In October last he 
had a shop at the comer of Boom and Buiten- 
kant-streets, but in response to an advertisement 
in the '* Cape Times " he went and saw Mrs. 
Warmesley, who referred l^im to her husband* 



96 



The same evening he and Mr. Wadmore again 
called and had a conversation with Mr. Warmes- 
ley, when he (witness) hired the shop and house 
for £10 lOs. per month rent. Warmesley said 
the shop was the property of his wife. Had 
since found that Mrs. Warmesley was an heir in 
her mother*s estate. Witness asked Mr. 
Warmesley for a lease, which he consented to, 
and subsequently a twelve months' lease 
was arranged for with option to 
witness of a further twelve months. 
Warmesley at the time promised to effect 
certain alterations and repairs to the premises, 
as suggested by witness, and he also promised to 
get the lease drawn up. He nover kept his 
promise about the alterations and repairs. He 
(witness) went into the place on the 13th 
October, two days before the date agreed upon. 
Warmesley agreed to this. Witness had ex- 
pended nearly £60 in fitting up the shop. Wit- 
ness suggested that the first rent should be paid 
on the 1st November and thereafter on the first 
of every month. Warmesley, however, delayed 
getting the lease drawn up and witness having 
offered the rent on the 1st November again 
offered it on the 15th November. On that date 
he first heard of Mr. Yillet. He first heard, in 
January last, that Warmesley would not give a 
lease. Witness was in negotiation with him in 
November for the purchase of the property. 
Warmesley told him that the shop might have 
to be sold and witness replied that he was going 
the right way to ruin him, as he was about to 
sell the property and he (witness) bad not got a 
lease and had spent his capital in fixtures. 
Warmesley wanted £1,400 for the shop 
and witness tried to negotiate the purchase, 
but failed. It was at this time that he first 
knew that Mr. Yillet was one of the executors, 
and that a mortgage had to be paid on the 
property. Mr. Yillet then said Warmesley had 
no right to promise witness a lease. Witness 
then said he had been led to hire the shop by 
the false pretences of Warmesley. Subsequently 
he received a demand for £31 lOs., rent from 
Mr. Yillet. He refused to pay unless the lease 
promised by Warmesley was given him. Mr. 
Yillet replied that neither he nor his co-executor 
in the estate of the late Mrs. Rogers had 
promised a lease, and that he (witness) only had 
a monthly tenancy. 

Cross-examined by Mr. Searle : Did not know 
when he agreed to take the shop that the pro- 
perty was in Mrs. Rogers's estate. Warmesley 
did not tell him that it was property bequeathed 
to his wife, and that a lease could only be given 
if certain eventualities came about. He found 
it all out in November, however, and then tried 
to buy the property. Did not himself have a 



lease drawn up, because he believed Warmesley 
would keep his promise. The fixtures were put 
up by him as movable fixtures. 

Re-examined : When he tendered the rent he 
was always careful to do so on condition that 
the lease was given him. Knew nothing what- 
ever about Mr. Yillet until he had been six 
weeks in occupation. 

Walter Wadmore, professor of singing, said 
he resided at Yamey's Corner with the last wit- 
ness. Wan present at the negotiations between 
Jessop and Warmesley. Witness suggested a 
long lease, but Jessop objected, and suggested ft 
twelve months' lease, which Warmesley said 
there would be no difficulty about. Also heard 
Warmesley promise to effect certain alterations 
and repairs. Often saw Warmesley In the shop, 
and he never raised any objection about the 
lease. 

Cross-examined: Did not know at the time 
that Warmesley was insolvent, or any of the 
circumstances connected with the property 
but that came out afterwards. 

This closed the evidence for the defendant. 

Richard Yillet, house agent and broker, of 
Cape Town, deposed that he was oo-executor 
testamentary with Mr. Warmesley in the estate 
of the late Mrs. Rogers (Mrs. Warmesley's 
mother). The property consisted wholly of 
landed property at Sea Point, and there was a 
bond of £2,000 on it, and other debte 
amounting to £360. Mr. and Mrs. Warmesley 
were married in community, and under the will 
Mr. Warmesley had to pay about £1,i00 off the 
bond before he could get transfer ; and Mrs. 
Stanley, the other daughter of Mrs. Rogers, had 
to pay the remainder of the bond, £1,260. Wit- 
ness administered the estate. The son-in-law 
Stanley occupied the shop Jessop was now in, 
and he had to leave. There were nine oottagee* 
all let to monthly tenants. Warmesl^ let the 
properties, collected the rents, and handed them 
over to witness. Warmesley was oo-execntor 
with witness, and no lease could be given by 
Warmesley, as it might have prejudiced the 
impending sale of the property. Warmesley 
became insolvent about two years ago. The 
value of the entire property would 
be about £3,000, bequeathed to her three 
children by Mrs. Rogers. When Jessop 
came to him alx>ut purchasing the property he 
never said a word about a lease promised by 
Warmesley. Witness was quite certain of thie. 
Was not made aware that Warmesley had 
promised Jesnop a lease. 

Cross-examined: Warmesley informed him 
that he had not promised any lease whatever to 
Jessop. 



9? 



By the Court: Warmesley had attempted, 

before lefctins the plAoe to JeBsop, to raise the 

money required, by tlie '«rill, iwlthont success. It 

might be that it ^rould Ixave been Warmesley*s 

interest to K^t a texLant on a long lease. If 

Wtrmedey bad told liim that he had gi^en 

JeMop a lease witness urould have objected on 

the ground that it w^as a^ain^t the interests of 

the ale. The creditors were pressing and the 

ale had to be effected to pay the debts. In his 

opinion there was no other way of paying the 

debt* than by eelling the property. 

Alfred HarriB Warmesley, one of the plaintiffs, 
iudthat Jesaop aak.ed for a lease, but witness 
■aid it was not then in his power, but that as 
MMnaBli was in bis power, he would give him 
any lease he wanted eo long as the rent was paid. 
Wadmore aaRed witness to make out an agree- 
BMnt on the spot, bnt witness reiterated that he 
ocmU not do so, and Jessop said it would be all 
light. Witness did not promise to effect altera- 
tions and repairs. The only thing spoken about 
was a drain and some little papering in the 
pusage. This latter witness did himself. After 
Jessop had been in about six weeks or two 
months he said to witness he supposed he oould 
do with some money, and asked about the agree- 
ment Witness said he must go to Mr. Villet 
about a written ag^reement Witness was at the 
time trying to raise the money to pay off the debt 
en the property. Had failed to do so. Had no 
authority to giire a lease without consulting Mr. 
ViUet, bnt he would have done so if he could 
have raised the money and got transfer. He 
was still in hopes of raising the money, and 
then he would g^ye Jessop a lease so long as the 
It was paid. Had no intention of ejecting 
The liabUities remaining on his (wit- 
neas's) insolyeni estate would be about £200, 
aod he wonid hare to pay this as weU as the 
bond on the property. Would have to pay 
about £1,400 altogether, and he was still in 
ho|)e8 of raising it. 

Cross-examined : Denied most emphatically 
the evidence of Jessop and Wadmore that he 
agreed to give the twelve months' lease. 

After argument, the Court gave judgment for 
the plaintifEs for the amount of rent claimed, 
and absolution from the instance on the claim 
in reconvention, with costs. 

The Chief Justice said : It appears to me that 
in this case there has been a most unfortunate 
misonderBtanding between the parties. I con- 
fer to a feeling of great sympathy for the de- 
fendant in this case because I have no doubt 
whatever that he understood he was to have the 
property for a term of twelve months, with the 
option of another twelve months ; but I am not 
M^ified that the plaintiff Warmesley also so 





understood the agreement. Warmesley probably 
at the time anticipated that he would ultimately 
become the owner, and he, in my opinion, 
told the defendant that if he became the 
owner he would allow him to remain 
for twelve months with the option of 
twelve months longer, but I am not satisfied 
that Warmesley ever promised to have a 
written agreement executed. Now, if the de- 
fendant had understood that there was to be a 
written agreement — and that is the only ques- 
tion in this case— why did he not have one pre- 
pared ? He had ample time to have one pre- 
pared, and to submit it for signature ; instead 
of that he allows the matter to lie by for three 
months. If he had prepared a written agree- 
ment, and submitted it for signature, the whole 
question would have come out at once. Now, 1 
think Mr. Wadmore also misunderstood the 
purport of the conversation, and another reason 
for my thinking there was a misunderstanding 
is that when it comes to the question of the 
repairs there is really no evidence in support 
of the defendant's statement. Mr. Wadmore 
remembers something about a gate, but as to 
the rest he knows nothing about it, whereas the 
defendant says he made it a sine qua non of 
the lease that all these repairs were to be 
effected. Now, the only question that remains 
is whether there was to be a written agreement, 
and I am not satisfied that there was any under- 
taking on the part of Mr. Warmeslsy to give a 
written agreement. That being so, there must 
be judgment for the plaintiffs for the amount 
of rent claimed, and absolution from the 
instance on the claim in reconvention. I 
express no opinion as to whether the defendant 
should be turned out before the twelve months 
have expired, but I strongly advise the plain- 
tiffs to allow him to remain unless it 
is absolutely necessary to sell the property. 
There is another question, whether there was 
not a promise quite independent of any written 
lease. It would b« best to allow the defendant 
to remain for the full two years ; but in my 
opinion it has not been proved that the plain- 
tiffs are bound to execute a written agreement 
and judgment must therefore be as stated. 

Their lordships concurred. 

[Plaintiffs' Attorney, W. E. Moore ; Defen- 
dant's Attorneys, Messrs. J. C. Berrange & Son.] 



98 



SUPREME COURT- 



[Before Sir J. H. dk Villibrb (Chief Justice), 
Mr. Justice Buchanan, and Mr. Ju tice 
Upington, K.C.M.G.] 



PROVISIONAL ROLL. 



TBNNANT V. NOBTJB. J Keb^^th. 

Mr. Graham moved for provisional sentence 
for the sum of £350, due on a mortgage bond. 
Granted. 



ERASMUS y. MOOLMAN. 

Mr. Buchanan moved for provisional sentence 
on a mortgage bond for the sum of £53, with 
interest at 6 per cent, from 27th March, 1893. 

Provisional sentence was granted. 



HIDDINOH V. UY8. 

Mr. Graham moved for provisional sentence 
for the sum of £1,260, with interest at 6 per 
cent, from Ist Deoember, 1893, due on a mort- 
gage bond. 

Provisional sentence granted, and property 
declared executable. 



MCLAREN AND 00. V. BMIDT. 

Mr. Maskew moved for the final adjudication 
of the defendant's estate as insolvent. 
Order granted. 



WILDS V. LAUBMETBR AND WIFE. 

Mr. Tredgold moved for provisional sentence 
against defendants for the sum of £67 17s. 5d. 
due on a promissory note. 

Mr. Watermeyer consented to provisional 
sentence being taken against the first-named 
defendant, but asked that the case against the 
second defendant might stand over for the 
arrival of her affidavit. 

The Court granted provisional sentence 
against the first defendant, the case against the 
second defendant to stand over. 



VAN HOB yen's BZECUTOBBV. JACOB'S EXECUTORS. 

Mr. Maskew moved for provisional sentence 
for the sum of £300, with interest from March 
20, 1885, due on a mortgage bond. 

Provisional sentence was granted. 



MCKENZIE AND CO. V. 8CHIEMANN. 

Mr. Shell moved for judgment against the 
defendant in his capacity as master of the 
German barque Ernestine for the sum of £24, 
with interest from January 31, 1895, being for 
towage services, hire of engine, &c., on behalf of 
the ship ; also for the sum of £311 17s. 6d., with 
interest from January 31, 1895, being for work 
and labour done in connection with the unloading 
and reloading certain cargo on board the 
Ernestine. 

The defendant consented to judgment with 
costs. 



BOALCH V. 8CHIEMANN. 

Mr. Shell moved for judgment for the sum of 
£27 17s. Id., with interest from 31st January, 
1895, being for meat supplied for the main- 
tenance of the master and crew of the Ernestine. 

The defendant consented to judgment with 
costs. 



BUBHSISTBB V. SCHIBMANN. 

Mr. Shell moved for judgment for the sum of 
£740 98. 5d., with interest from 81st January, 
1895, being for money lent and advanced on 
behalf of the Ernestine. 

The defendant consented to judgment with 
costs. 



SHOBT AND 00. V. BOHIEMANN. 

Mr. Shell moved for judgment for the sum of 
£65 lOs., with interest from 81st January, 1895, 
being for blacksmith's work done to the 
Ernestine. 

The defendant consented to judgment with 
costs. 



HTLAND V. 8GHIEMAKN. 

Mr. Shell moved for judgment for the sum of 
£1,216, with interest from Slst January, 1895, 
being for work and labour done in repairs 
effected to the Ernestine. 

The defendant consented to judgment with 
costs. 



REHABILITATION. 

Mr. Maskew applied for the rehabilitation of 
Alexander Raphael. 
Order granted. 

GENERAL MOTIONS. 

m THE MATTER OT THE CAPE OF GOOD HOPE 

BANK. 

Mr. Innee, Q.C., applied for an order 
to make absolute tne rule nisi for 
authority to the official liquidators to refund to 



r 



99 



cotim aharehoMera, deBoribed as being on list 
B,UieunountBp&i<il>y ^liexn aa oontributories in 
ttOKi of their li&bilitiea in respect of debts due 
bf the biok at tbe dates w^hen the said oontri- 
totomibeeaxire Booh aliarelioldera. 
The nde was made alw^olute. 



V. QBEBF. 

Mt. Settle^ Q.C., applied for an order Betting 
aode oertain attaohineiit of printing plant and 
material obtained at tbe instance of applicant 
pen^Bg aa action against respondent for 
neoToy of rent alleged to be due under a lease, 
aad that applicant do pay the costs. 
Mr. SbeiU for tbe original applicant 

(Fif*on]iB>, applied for a further postponement 

ia the matter owing to the illness of the 

wayondent in the application. 
Poitpoaement granted to the 12th March, 

PrHoriua to pay the coata of the day. 



DU PUBSSIB V. FEBRKHIA. 

Mr. Searle, Q.C., applied for an order for the 
attaehmeat of the person of the respondent for 
itempt of Court in r^ect of his failure to 
oDt the terms of certain award made a 
mle of Court on August 1 last in respect of the 
■abdrnaion of the farm Rietfontein, in the 
diflkziet of Humansdorp. 

Order granted that the sheriff be authorised 
to execute the neceasarj transfer on behalf of 
tke respondent on the 20th April, unless the 
reapondent shall in the meantime show cause to 
tlie Coort, after due notice has been served on 
bim, why such transfer should not be effected. 
Kotiee of the order to be forthwith served on 
tbe respondent. 



ExpaHeumTO. | Feb® 28th 

Marital power — No;»-exclasion in aiite- 
uuptial contract — Mortgnge bond. 

TKt Court granted leave to the petitioner^ who 
uos married to her husband by cmte-nuptial 
rontrac^^ the marital power not being 
€xcludedj to pctss a mortgage bond, wiihoiU 
the as9i$ta'nce of her husbatui, tchose where- 
oioifts were wtdenownyfor tt« bakmce of the 
purdiase price of certain property tvhich the 
had bought. 



The petitioner alleged that prior to her mar- 
riage an ante-nuptial contract was executed 
between herself and her husband, the marital 
power not being excluded. 

That on 14th February, 1891, whilst resident 
at Kimberley her husband deserted her, and be- 
yond hearing from him shortly after from the 
Orange River Station she had had no informa- 
tion as to his whereabouts, although she had 
done her best to ascertain the same. 

That she had purchased certain property in 
the Cape division for the sum of £726, of which 
she was prepared to pay the sum of £826 and 
pass a first mortgage for £400, but that as the 
ante-nuptial did not exclude the marital power 
the bond could not be registered unlets she were 
assisted by her husband, who has no direct or 
indirect interest in the matter. 

That by reason of the absence of her husband 
and her ignorance as to his whereabouts she 
could not obtain his assistance. 

The prayer was for (1) an order authorising 
the petitioner to pass a first mortgage on the 
property for £400 without the assistance of her 
husband, and (2) authorising her to deal here- 
after with the property, or with other assets she 
might acquire, or in other transactions she 
might enter into without the assistance of her 
husband. 

Mr. Shell appeared for the petitioner. 

The Court granted the first prayer of the 

petition. 
[Petitioner's Attorney, C. C. Silberbauer.] 



This was the petition of Blixabeth Ann Mintc 
Ctemerly Trevethick), married without com- 
miiaity of property to WUlium Charles Minto. 



SMITH V. SMITH. 

Mr. Sheil applied for an order admitting 
applicant to sue inform-apanperU in an action 
against her husband for restitution of con- 
jugal rights, failing which for divorce, it having 
been found impracticable after due inquiry to 
ascertain where her husband is residing for the 
purpose of serving the mleniH already granted. 

Order granted authorising the service of the 
rule by means of one publication in the " Sydney 
Daily Telegraph " : rule returnable on the last 
day of May term. 



100 



SUPREME COURT. 



Before Hir J. H. DB YiLLDEBfi (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
[JPINQTON, K.C.M.G.l 



BEBTHAM Y, 8LAMIB. 



f 1895. 
( March Ist. 

Tender — Insufficiency — Work and labour. 



This was an appeal from a decision of the 
Resident Magistrate for Simon's Town in an 
action in which the present respondent, 
plaintiff in the Court below, sued the appellant, 
defendant, for the sum of £20, beinf( for work 
and labour done in connection, as the account 
annexed to the summons stated, with the cap- 
ture, killing, and cutting up of a whale during 
the months of August and September, 1894, at 
the special instance and request of the defen- 
dant. 

The defendant tendered £1 4b. before the 
action was brought, and denied liability on the 
claim. 

The Magistrate gave judgment for the plain- 
tiff for £6 with costs. The facts appear from 
the Magistrate's reasons, which were as follows : 

In this case I am of opinion that the plaintiff 
and his crew first saw the whale, and gave the 
usual signal by landing a man, and then making 
a fire. Defendant's }x)at was the first to take 
advantage of this. 

The plaintiff rendered defendant further 
assistance by showing him the whale, and after 
it was harpooned he lent an oar, and remained 
with defendant as long as possible, and they are 
entitled to some remuneration. I therefore 
consider the tender insufiicient, and gave judg- 
ment for plaintiff for £5 and costs. 

The defendant now appealed. 

Mr. Graham for the appellant. 

The respondent was not represented. 

The Court dismissed the appeal. 

The Chief Justice said : In a matter of this 
kind the Court should not scrutinise the exact 
amount of damages awarded by the Magistrate. 
The plaintiff was the captain of the boat, and 
there was no doubt the crew of the boat did 
some service in the capture of the whale, and 
that the captain of the boat was entitled to 
higher remuneration than the rest of the crew. 
Their services were not very great, but some 
services were performed— their boat was attached 
to the whale for about an hour, and the very 
weight of the boat would impede the whale. 
They also were the people who helped to give 
notice of the capture, and (hey wept for the 



tug, which also was of eome assistance, and after 
the whale was landed these men assisted la 
cutting it up. Under these circumstances, I 
think the amount awarded to the captain of the 
boat was very moderate, and the appeal muat be 
dismissed. 
[Appellants' Attorney, D. Tennant.] 



VAN NOOBDKN V. VAN ZYU { y^^^^' j^^ 

DiFCovery — d32nd Rule of Court. 

This was an application on notioe to the 
plaintiff's attorneys that they would be required 
to show cause why the plaintiff should not be 
ordered to discover on oath during the course of 
this day (28th February) aU books, acoountci, 
papers, correspondence, and documents which 
are or have been in his possession or power 
relati ve to any matters in question in the above 
action ; also why the costs of the application 
should not be ordered to be costs in the cause. 

The defendants' attorney alleged, inter alia. 
that his object in getting a discovery was to 
ascertain from the books and papers of Mr. Van 
Noorden the exact position of affairs, and to 
ascertain the detailed items with which the 
defendants have from time to time been 
credited and debited in account with the plain- 
tiff. That this was necessary if the defendanta 
were to comply with the advice of the Chief 
Justice g^ven in a recent action. 

In reply, the plaintiff's attorney stated that 
his client had no objection to make the affi- 
davit of discovery in due course, but that he and 
his attorneys both objected to be compelled to 
lay aside all other business for the purpose of 
complying immediately with the demands of 
the defendants, who, without the present 
motion, were entitled to apply in Chambers in 
the ordinary way for an oitler of discovery, 
which would be duly complied with. 

Mr. Rose-Innes, Q.C., in support of the appli- 
cation, relied on the 332nd Rule of Court and on 
Wi4i$e V. MoiteH (3 Shell, J 33; 10 Juta, 137). 

Mr. Juta, Q.C., for the res)>ondent. 

The Court granted the application. 

The Chief Justice said : Sufficient notioe of 
applications of this kind should be given. Yes- 
terday afternoon when the Court was about to 
adjourn this application was sprung upon it, 
and counsel had not even time to look into the 
authorities, and the Court was to be hurried 
into giving the order at once. Had time been 
given to counsel no doubt the practice laiddoTuna 
by the Court would have been made clear. (His 
lordship referred to an application made in 
Chambers op 9th June, 1893, in the case of 



101 



Hejdaiiych ▼. Fanxier« •* for an order directing 
tk defendant to n&alce disoo^ery on oath of ail 
doenmenta whicb are or Ha^e been in his poitses- 
oon or power relating to any matters in ques- 
tion in this suit." Tlie order granted by the 
Chit! Justice was as follo^ws : ^* Grant the order, 
bat not to be executed until after the declara- 
tion hss been Med and served on defendant. In 
Tme T. Uottert tbe Court ordered a discovery 
before declaration, but that was at the instance 
of the defendant asainst tbe plaintiff, who 
vooldbe presamed to luiow what the matters in 
qnestion are. Tbe defendant could not know 
from the BumnAons what the matters in 
qoestion are, and therefore the declaration 
ibmUd ftnik be filed.") His lordship con- 
tinue : In the present case it is the 
defendants who apply for discovery, ami if 
the plaintiff has already served his summons 
and hifi declaration, surely he would know, better 
than anybody else, what tbe matters in dispute 
were ; and. instead of opposing the discovery, 
he onght at once to have consented. The only 
mjfllake the applicant made was in pressing for 
disooveiy within twenty-four hours. The 
Cooit will grant the order, the costs to be costs 
in the cause. Forty-eight hours would seem to 
be a reasonable time to allow to the plaintiff. 

fApplicanVB Attorney, O. Montgomery- 
Walker; Respondents' Attorneys, Messrs. 
Fairbridge, Ardeme it Law ton.] 



3funicipal area, it being clear thai in 
lieiiher ccute was the water acquired by 
ptircfMHe or by virtue of any traiuactum 
equivalent to a purchase. 



DB BEKB8 C0K80LIDATBD MINKS I ^ggg 
T. KIMBBBIJCY WAMIHWOBKS I j^arch Ist. 
COMPANT. f 

Construction of agreement — ^' Obtain and 
purclia9e" — Restraint upuii exercise of 
lei^l rights — Proviso to clause. 

By cufreemeni betvoeen a Mining Company 

and a Watenoorks Company the former 

undertook during the tei-m of the agieement 

fei '' ob ain and purcliase" a/Z the water 

reqtiired hy them for mining purposes 

from the latter company and from no other 

peratm or company uj^tatsoever ; provided 

that nothing herein contained shall prevent 

tbe said Mining Cjmpuny from using any 

water obtained by it Iro n the mines or 

from its wells. 

Helo, that, the Mining Company were 

entitled to use for mining purposes water 

from a mine which they acquired and 

worked after ike date of the agreement and 

water ic^tcA ihey diverted, with the consent 

of iht Kimberley Town C'owiicii, fro^n the 



This was an appeal from a judgment of the 
High Court of Griqualand West, delivered in 
two actions heard in that Court in December 
last. In the first the De Beers Mines claimed 
a declaration of rights under clause 6 of an 
agreement entered into between the parties on 
the 26th November, 1888, and in the second the 
Kimberley Waterworks Company claimed the 
sura of £6,000 damages for alleged breaches of 
the agreement and for a perpetual interdict. 

The following i^ the clause of the agreement 
alleged to have been broken by De Beers : " That 
the said De Beers Consolidated Mines ( Limited) 
shall at all times for and during the whole and 
full term of this agreement obtain and purchase 
all the water required by them for their mining 
purposes from the said Kimberley Waterworks 
Company (Limited), and from no other person 
or persons or company or companies whatso- 
ever ; provided, however, that nothing herein 
con tamed shall prevent the said company from 
using any water obtained by it from the mines 
or from its wells or reservoirs." 

The facts in the first case, as found in the 
Court below, are as follows : In the year 1888 
the Waterworks Company were in the enjoy- 
ment of a practical monopoly of the local water 
supply, with tbe exception of that obtained 
from wells or rain water ; they had at great 
expense erected machinery, constnicted reser- 
voirs, and laid down pipes for supplying 
Kiml>erley with water from the Vaal River, hav- 
ing obtained the necessary legal powers for that 
purpose ; under an agreement with the Kim- 
berley Town Council, made in 1880, they had the 
exclusive right of supplying the Municipality 
and its inhabitants with river water for a period 
of twenty-five years from that date ; in the 
neighbouring Municipality of Beaconsfield they 
had no such monopoly, but they had in fact 
extended their system to that Municipality, and 
theirs was the only existing source of supply, 
and the same may be said of the various mining 
companies, including the plaintiff company, 
then carrying on operations in the four mines 
of Kimberley, De Beers, Du Toit's Pan, and 
Bultfontein, and these companies, so far 
as they required extraneous water for 
their mining purposes, had to obtain it 
from the defendants. In the year 1888 De 
Beers acquired cert-ain Parliamentary powers, 
by Act 38 of that year, which is entitled the 
"De Beers Consolidated Mines Water 



102 



Supply Act" The De Beers Company 
aocordijigly obtained the necessary statutory 
powers for bringing another supply of water 
from the Vaal River for the purposes aforesaid. 
There was a clause saving the vested rights of 
the Waterworks Company ; a maximum tariff 
was laid down for the supply of water to 
Beaoonsfield, and the works had to be begun 
within one year, and completed within three 
years of the passing of the Act, whioh was pro* 
mulgated in August, 1888. Within three months 
of the passing of this Act De Beers and the 
Waterwoi ks Company entered into the agree- 
ment whioh is the subject of this aotion. Under 
this agreement, to state its effect shortly, in 
consideration of the Waterworks Company (1) 
paying the De Beers Company the sum of £10,000; 
(2) supplying the mining companies at Kimber- 
ley and De Beers, and also any mining com- 
panies or properties in " the Du Toit's Pan and 
Bultfontein mines, or mines adjacent thereto," 
which might in future be acquired by or become 
amalgamated with the De Beeis Company, with 
water for mining purposes at a reduced rate ; (3) 
making similar arrangements for the supply of 
the De Beers Company's township proposed to 
be established at Kenilworth, and of the Muni- 
cipality and inhabitants of Beaoonsfield. For 
these considerations the De Beers Company for 
their part undertook: (1) To obtain all the 
extraneous water re:iuired for their mining pur- 
poses from the Waterworks Company; (2) to 
oppose any competing company or venture 
having objects similar to those of the Water- 
works Company; (3) to cede to the Water- 
works Company all the concessions and rights 
they then held in connection with the con- 
struction and maintenance of waterworks. 
Such appears to be the general effect of this 
agreement, which was to be in force for a period 
of twenty -five years, and in accordance with its 
terms the Waterworks Company paid the money 
and reduced their terms for water supply, while 
the De Beers Company ceded their concessions 
and rights. No difficulty, so far as appears 
from the evidence, seems to have occurred in 
connection with the working or interpretation 
of this agreement till a comparatively recent 
date. So far back, however, as 1891, when the 
amalgamation of the various holdings in the 
four existing mines by the De Beers Company 
was already practically complete, that 
company acquired the farms of Oliphante- 
fontein and Benaauwdheidsfonteiu. commonly 
described as the Wesselton Estate, on the latter 
of which another diamond mine, called the 
Premier mine, had been discovered. This mine 
is alleged by the plaintiffs in their declaration 
to be adjacent to the PuToifs fiin apd Pi^Ufon- 



tein mines, but according to the distancee set 
forth in the defendants' pleas, and which were 
admitted by the plaintiffs' counsel in opening; 
the case to be correct, it is distant more than a 
mile and a half from Du Toit's Pan mine, and 
more than two miles from Bultfontein, and that 
being so. the allegation of adjacency was not 
relied on. The Premier mine makes water in 
enormous quantitieb, which has to be continu- 
ously pumped out, and the volume of which is 
far greater than is required, or is likely 
to be required, for purposes connected 
with the mine. The surplus wat«T thus 
pumped out the plaintiffs propose to collect and 
to lead in pipes, to be laid down at large expense 
and for a distance of several miles, to their dam 
or reservoir at Kenilworth, in order to use it for 
mining purposes in connection with the Kim- 
berley and De Beers mines. 

The defendants denied the plaintiffs' right to 
use the water as proposed on the ground that 
such aotion would amount to a breach of their 
agreement, and on the further special ground 
that the plaintiffs had leased the Premier mine to 
one Ward, that they had parted with the water 
rights to Ward as lessee, and that therefore 
they could only acquire the water by purchasing 
or obtaining it from Ward, which by the agree- 
ment they are prohibited from doing. 

In the second action by the Waterworks 
against De Beers the facts are briefly these : 

It appears that in the month of January last 
the De Beers Consolidated Mines applied to and 
obtained permission from the Town Council of 
Eimberley to construct a dish drain across and 
from the Transvaal-road with the object of 
diverting and conducting into the Kenilworth 
dam the water which after rains flows down the 
drains on each side of the Transvaal-road. The 
water in question is surface rain-water falling 
upon an area of about 278 acres in the Munici- 
pality of Kimberley, which after flowing down 
various drains in the town is at length col- 
lected into the two drains along the Transvaal- 
road. It flows thence on to Municipal land, and 
at length finds its way into the White Dam, the 
property of the Municipality, and the overflow 
from that dam runs into Diebel's Ylei, a portion 
of which belongs to the De Beers Consolidated 
Mines. 

The Waterworks Company complain that by 
digging the dish drain across the Transvaal- 
road and conducting the water into the Kenil- 
worth dam, and using it for mining purposes, 
the defendant company are guilty of a breach 
of clause 6 of their agreement. 

In the first action judgment was given for tho 
defendants with costs, and in the second lu^tioa 



103 



i 



judgment wms ^ven Itk favour of the plaintiffs 
for IIOO damages. A pierpetual interdict being 
tbognnted against De Beers. 
From these jadgments the De Been Con- 
nlidiied Mines now appealed. 

Mr. Rose-Innes, Q.C., Mr. Solomon, Q.C., and 
Mt. Webber for the appellants. 

Kr. Searle, Q.C., and. Mr. Joubert for the 
rapondents. 
The appeals wore allowed. 
The Chief Justice said : But for the terms of 
tile agreement in question the De Beers Company 
would haVe had the undoubted ri^ht to obtain, 
wherever and from whomsoever they could, all 
the water required by the company for mining 
parposee. Before discussing the effect of the 
agreement let me state in a few simple words 
what the De Beers Company have proposed to do, 
and what they have actually done. They 
intend to collect the surplus water issuing from 
the Premier mine and to lead it on to their 
mines at Kimberley and De Beers, to be there 
used for mining purposes. That water ad- 
raittedly belongs to them and would run to 
waste unless utilized by them. It was not 
songhtfor by them but was found by Ward, who 
wrai working the Premier mine under an 
arrangement with them, and who does not, as 
far as the evidence enables us to judge, object 
to Uieir using the water for their own mining 
purposes. There is no suggestion of any colour- 
able arrangement between them and Ward. 
The mine is theirs and the water collected f i om 
the mine belongs to them, and they intend to 
exercise the obvious and natural right of 
atUising what belongs to them instead of 
allowing it to go to waste. Now let me state 
w-hat they hare actually done. During rains a 
ooBsiderable quantity of rain-water falls upon 
the Municipal area of Kimberley. and this 
water, unless interfered with by artificial means, 
flows m the direction of the so-called White 
I>am. The De Beers Company, with the con- 
sent of the Town Council, have constructed a 
dash drain 4n the Transvaal-road, the effect of 
which was to divert the water into their dam at 
Kenilworth, where it became available for 
mining purposes as well as for irrigation. Ko 
ooBflideration was iiiyen to the Town Council 
for the right of acquiring the water. It has 
been suggested in argument that the under- 
taking to keep the dish drain in order con- 
stitutes a consideration. There would have 
been some weight in the suggestion if the 
didi drain bad already been in existence and, 
as compensation for keeping it in order, the De 
Beers Company had been allowed to use water 
fiUiing within the Municipal area. But the 
^'''^■^BspoQdence between the company and the 



Town Council clearly shows that the obligation 
to keep the drain in good order was imposed upon 
the company as a condition subject to which only 
they acquired the right of making the drain. 
The arrangement was made in perfect good 
faith and there is not the slightest suspicion 
of its being intended as a purchase of Municipal 
water under colour of an agreement to construct 
and maintain a drain. The right, then, of the 
De Beers Company to utilise the water from the 
Premier mine, as they propose doing, and to 
use the water from the Municipal area as they 
have already done, is perfectly plain, and the 
question to be determined is whether they have 
surrendered that right by their sgreement made 
with the Waterworks Company on the 26th Nov., 
1888. Under that agreement the sum of £10,000 
was to be paid by the Waterworks Company to 
the De Beers Company. This sum is stated by Mr. 
Justice Solomon to have been paid for the right to 
supply the De Beers Company with water for the 
period of twenty-five years, but, under the 
agreement, the Waterworks Company acquired 
other important rights in addition to that of 
supplying the De Beers Company with water. 
They acquired the valuable concessions which the 
De Beers Company had previously obtained in 
connection with the construction and mainte- 
nance of waterworks for the supply of Kimberley 
with water. They obtained moreover an un- 
dertaking that the De Beers Company would not 
directly or indirectly assist in the establish- 
ment or promotion of any other company or 
venture in the district of Kimberley having 
objects similar to their own, but would on the 
contrary actively oppose any such Company or 
venture. The clause which is relied upon as de- 
priving the De Beers Company of the rights, which 
I mentioned at the outset, is the following : " The 
said De Beers Consolidated Mines (Limited^ 
shall at all times for and during the whole and 
full term of this agreement obtain and purchase 
all the water required by them for their mining 
purposes from the said Kimberley Waterworks 
Company (Limited) and from no other person 
or persons or company or companies whatsoever ; 
provided, however, that nothing herein contained 
shall prevent the said company from using any 
water obtained by it from the mines or from its 
wells and reservoirs." The De Beers Company 
then are prohibited irom "obtaining and 
purchasing " water required for mining purposes 
from any other person or company. It does not 
follow that they are prohibited from obtaining 
water from any othei source if the transaction 
does not partake of the nature of a purchase. 
If the words used had been *' obtain or purchase " 
there would have been some force in the con- 
tention that the acquisition of water from any 



l04 



source whatever is prohibited, although even 
then the juxtaposition of the two verbs would 
have justified the Court in allowing the one to 
qualify the other. But the use of the words 
^'obtain and purchase'* leaves no doubt in my 
mind as to the intention of the parties. Mr, 
Justice Solomon seems to read these words as 
meaning ''obtain by purchase '* but he confines 
the meaning to the obligation to obtain all the 
wat«r required for mining purposes from the 
Waterworks Company. In fairness as well as 
in grammar, it ought to be extended to the 
prohibition against obtaining wat«)r fi'om any- 
one else. If I am right in the view that the 
prohibition onl}' applies to the acquisition of 
water by means of a purchase or any transac- 
tion equivalent to a purchase, the subsequent 
proviso cannot be allowed to extend the 
prohibition to every other mode of acquisi- 
tion. A proviso of this nature is often 
introduced ex abundante cautekif and ought 
not to be allowed to explain a stipulation 
which is perfectly intelligible and therefore in 
no need of explanation. The learned Judge- 
President says: **In making this proviso it 
appears to me that the plaintiffs, that is the 
De Beers Company, play the part of stipulators, 
and that any ambiguity in its terms should be 
construed against them in accordance with the 
principle laid down by Voet " (45, 1, 23). But 
it appears to me that the Waterworks Company 
are the stipulators in this clause. They stipulate 
for .the imposition of an onerous restraint on 
the plain legal rightfl of the De Beers Company, 
and the sole object of the proviso is to prevent 
the possibility of the restraint being applied to 
the use of the water from their own mines. A 
proviso which was introduced for the purpose of 
preventing the restraint from being too onerous 
ought surely not to be used for the purpose of 
making the restraint more onerous. Bven if 
the learned Judge-President be correct in the 
vioiv^ that any ambiguity in the terms of the 
proviso should be construed against the De 
Beers Company, such construction would still 
leave the precedent stipulation in favour of the 
Waterworks Company untouched. Any ambi- 
guity in the terms of that stipulation must, 
according to the rule of construction adopted 
in the Court below, be construed against the 
Waterworks Company. In my opinion the 
stipulation is perfectly intelligible without the 
assistance of the proviso and was not intended 
to be made more stringent by means of the 
proviso. The De Beers Company have not 
acquired any water by purchase or under colour 
of any transaction equivalent to a purchase, and 
no breach or intended breach of the agreement 
on their part has been proved. No question has 



been raised in this Court or in the Court 
below as to the form of the action brought 
by the De Beei-s Company. It has been 
assumed on both sides that if they have the 
right to collect and make use of the water 
which accumulates in the Premier mine, and 
would otherwise run to waste, they are entitled 
to a declaration of their rights in that respect- 
In the first action, therefore, an order will be 
made in terms of the second prayer of the 
declaration. In the second action, which was 
brought by the Waterworks Company, judg- 
ment must be given for the defendants. In 
both actions the costs in this Court and in the 
Court below must be paid by the Waterworks 
Company. 

Mr. Justice Buchanan : It strikes me that the 
learned judges in the Court below did not 
approach the agreement from the prox>er stand- 
point. The proviso shows that what the 
Waterworks Company was so anxious to secure 
was their future monopoly. They did not wish 
to interfere with the rights of the De Been 
Company, but they wished to buy up the 
concession which the De Beers Company had 
secured. 

Mr. Justice Upington also concurred. It had 
occurred to him that the words in the sixth 
section might be held to absolutely prohibit the 
use of any other water than that obtained 
from the compan}', but on full consideration 
he had come to the conclusion that it would 
require very much stronger words to form such 
a prohibition, as against the natural rights of 
the company. 

[Appellants' Attorneys, Messrs. Scanlen & 
Syfret; Respondents' Attorneys, Messrs. Van 
Zyl Sc Buissinnc.] 

KOHLEB Ain> OTHEBR V. BAABTMAN. 

Mr. Rose-Innes, Q.C., moved to make abso- 
lute a rule nUi restraiuiug the respondents 
from interfering with or using a certain stream 
of water flowing from the land Wolvekloof, in 
the district of the Paarl, to the farm of tiie 
applicants. 

Mr. Tredgold for the respondents. 

The order was granted, making absolute the 
rule niH, from which the words ** interfering 
with or using " were struck out. The respon* 
dents to have the right of claiming damage 
in respect of any injury which they could 
prove they had sustained by reason of the 
interdict. Costs to be costs in the cause. 



BKAUDE V. VBBDOES. 

On the motion of Mr, Rose-Innes, Q.C., the 
executors dative of the defendant, who died 



r 



i05 



the hearins of ^Ixe action last term, were 
snfcfltitated on tlie reoord as defendantp. The 
OM to be set down in tlie ordinary coarse. 



C ig 

WOLFF V. aOIX>lIOK*8 TRUBTKB. | j|^^ 



1895. 
5th. 

Hr. 8eir\e, Q.C, applied, on behalf of the 
defendiBt for leave to appeal to Her Majesty in 
her Privy Cooncil from the judgment of this 
Court, delivered on the 22nd February last, in 
ihc suit between the parties, and for an order 

lUying execntion of the said judgment. 
The CouTt granted tiie order ; the writ of 

exBoatioQ to he stayed for twelye months, with 

IttTeio apply for a further stay of execution. 



r 1896. 

NOLTB y. BE0I8TBAB OF DEBDS. -{ Msrch 5«h. 

I „ 7th. 



LAWBENCB V. LAWRENCE. 

Mr. Innea, Q.C., applied on behalf of the 
deteaduit for an order fixing an early date for 
the trial of the suit instituted against her by 
her hinband for restitution of oonjugal rights, 
failing which for divorce, the defendant being 
m a weak state of health, and liable to suif er 
isjuiy if the hearing of the case be deferred. 

Mr. Watermeyer appeared for the plaintiff, 
and ooosented to the granting of the order. 

Order granted, fixing the 12th inst. as the date 
of triaL 



15 THE INBOLYEirr ESTATE OF OBORQB 
EDWABD MAKDT. 

Mr. Tredgold moved for an order to make 
afaocdate the rule nUi restraining George 8. T. 
Mandy from removing any property now on the 
Pelion, near Lady Grey, and from alienat- 
or disposing of any stock or produce 
mooTed from the said farm since the seques- 
tration of the said estate. 

Mr. Searle, Q.C., for the respondent 
Mr. Tredgold, after the affidavits had been 
read, applied for a postponement to the 12th 
inataat, which was granted. 



€X>1CBKINCK V. COLONIAL OOVERNUENT. 

r. Innes, Q.O. (with Mr. Graham), applied 
for an order making the award of the arbitra- 
tors in the matter between the parties a rule of 
G«Mirt, with ooste against the respondents. 

Mr. Juta, Q.C. (with him Mr. Giddy), applied 
on behalf of the respondents for a postponement 
to the lith instant. 

The Chief Justice, in granting the order fsr 
the postponement, said that the Government, 
hefore ^e 12th instant, might, on reconsidering 
the matter, come to the conclusion that there 
was no hope of succesfuUy opposing the award 
htxog made a Bnle of Court 

P 



Transfer duty— Act 5 of 1884— Heirs- 
Exemption — Registrar of Deed.«. 

Husband and wife heqtteathed their twofarmx 
O. an I B. to their seven 6ons/or the eum of 
£1,400. 

The testator died first and at his death O. was 
held by him under a quitrent grants and B. 
was held by him on lease from Oovemment. 

A sum of money was tahen out of the estate 
for the purpose of acquiring B. but the 
agent who was entrusted with the matter 
became financially involved and both money 
and farm were lost to the estate. 

One son died leaving issue and a daughter was 
bom subsequent to the tnahing of the willy so 
that at the death of the testatrix there were 
living seven children and the issue of the 
predeceased son* 

The executor of the estate obtained cut order of 
Court sancthning the conveyance of O, to 
the heirs for £700j the Court also authorised 
him to overlooh in the transfer two of the 
six sonSf who had neglected to adiate^ and to 
transfer their shares to such of the other 
sons as might be willing to take them. 

Subsequently two other sons dec line i to adiate 
and of the two remaining sons, L. and J., 
who adiated^ L. accepted the four vacant 
shares and thus became entitled to five-sixths 
of the farm and J. to one-sixth. 

The executor thereupon proceeded to pass 
transfer of the farm to L. and J. in the 
proportions of five-sixths and one-sixth 
respectively, and tendered transfer duty 
receipts showing an exemption allowed to 
each of them by the Civil Commissioner of 
one-eighth of the value (£700) of the 
whole farm. 

The Registrar of Deeds took exception to 
^se allowances by the Civil Commissioner 
and contended that J. was only entitled to 
exemption upon oue-eighth of one-sixth of 
the value of the farm and L. to one-eighth 
of five-sixths 

On application being made to the Court the 
contention of the Registrar of Deeds was 
sustained. 



[ 



106 



This was an application under Act 5 of 1884, 
Motion 28, for an order declaring the applicants 
entitled to exemption from the payment of 
transfer duty as allowed by the CO. of Eraser- 
burg, in respect of certain landed property taken 
over by them from their parents* estate. 

The following are the facts: 

By their last will and testament Goenraad 
Barend Nolte and Anna Jacoba Elizabeth Nolte 
(bom Burger), spouses, bequeathed to their 
seven sons their farms Boven Bleskrans and 
Onder Bleskrans, situate in Fraserburg, together 
for the sum of 1,400. The words of the will are 
as follows : " En nu als op nieuw besohikkende 
en alvorens ter verkeizing van erfgenamen 
orergaande zoo verklaren wij testateurcn te 
legateeren te vermaken en te bespreken zoo als 
wij legateeren vermaken en bespreken bij dezen, 
en wel na het overli jden van de langstlevende van 

ons beide aan onjse soonen de tot 

onae Boedel behoorende twee plaatzen " Boven 
Bleskrans " en "Onder Bleskrans *' gelegen inde 
af deelingFraserburg gezamentlijk voor de somma 
van een dnizend vjer honderd ponden sterling. 
Daar deze vermaking eerst na den do<>d van de 
langstlevende van ons beide van kragt znlien 
zijn geschied echter onder de volgende voor- 
waarde en conditie namenteliik datgeen van onze 
voomoemde zonen zijn aandeel in voomoemde 
plaataen mogen verkoopen, verhanielen, ver- 
ruilen of verhuuren noch op eeoige wijs 
in bezit of gebruik van een vreemde te 
stellen zonder toestemming van alle de mede 
bezitters wensche een of meer hunner zijn of 
zijne aandeelen in voomoemde plaatzen met 
langer te behouden zuUen zij dezelve aan hunne 
mede bezitters moeten overlaten voor dienzelf de 
prijs welke hem of hun bij deze vermaking is 
komen te staanuitgenomen standhoudende verbe- 
teringen zoo als sterk en stevig gebouwde huizen 
gemetzelde Muurkralen en Damm enzullen door 
twee van weerzijds gekozene mannen moeten 
getaxeerd worden envolgens Taxeatie door hen 
aan wien |de deelen overgaan, moeten iworden 
uitbetaald " 

The testator died first, and at his death Onder 
Bleskrans was held by him under a quitrent 
grant, Boven Bleskrans was held on lease from 
Government 

A sum of money was taken out of the estate 
for the purpose of acquiring Boven Bleskrans, 
but the agent (now dead) who was entrusted 
with the matter became financially involved; 
and as a result both money and farm were lost 
to the estate. 

The testatrix died later ; and at her death, 
although in terms of the will two farms were 
bequeathed as above for £1,400, there was only 
one available : viz., Onder Bleskrans. Moreover 



one son had died leaving iasae ; and a daughter 
had been bom subsequent to the making of th« 
will— so that at the death of the testatrix there 
were seven children and the issue of the pre- 
deceased son. 

On the 12th September, 1893, the executor 
obtained an order of Gourt sanctioning the con- 
veyance of Onder Bleskrans to the heirs for £700, 
half of £1,400 the price of the two farms. The 
Court authorised the executor to overlook in the 
transfer two of the six sons, at Upington (who 
had neglected to adiate), and to transfer their 
shares to such of the other sons as might be 
willing to take them. 

Two of the sons had thus neglected to adiate 
and after the order of Court two others declined 
to adiate. Of the two remaining sons who 
adiated, one, Lourens Rasmus accepted the four 
vacant shares — and thus became entitled to 
five-sixths of the farm. 

The executor thereupon proceeded to pass 
transfer to Jan Hendrik Nolte and Lourens 
Rasmus Nolte of the said farm, in the propor- 
tions of one-sixth and five-sixths respectively, 
and tendered transfer duty receipts showing an 
exemption allowed to each of them by the Civil 
Commissioner of a one-eighth of the value 
(£700) of the whole farm. 

In the case of Jan Hendrik the Civil Com- 
missioner took the legated price of £700 as fixed 
by the Court and allowed him an exemption of 
a one-eighth thereof, he being one of eight 
heirs, viz. : 

(a) Six brothers. 

(b) Children of a deceased brother. 

(c) One sister. 

In the case of Loorens Rasmus the Civil 
Commissioner allowed a similar exemption, 
he being one of eight heirs. 

The Registrar of Deeds took exception to 
these allowances on the part of the Civil 
Commissioner, and on application being made 
to the Supreme Court to uphold the Civil 
Commissioner's allowance the Registrar of 
Deeds submitted the following report (ad- 
mitting the above statement of facts :) 

The Registrar contends that exemption 
was incorrectly allowed by the Civil Com- 
missioner, that Jan Hendrik is only exempt 
to the extent of one-eighth of one-sixth of 
the value of the farm and that Lourens Rasmus 
js exempt upon one-eighth of five-sixths of the 
value of the farm — as they seek to have transfer 
registered in their names of one-sixth and 
five-sixths shares respectively. 

It is admitted that if the six children to 
whom the property was bequeathed had applied 
for transfer in equul shares exemption to the 
extent of six-eighths of the value of the whole 



107 



Wrtj lould limve 'been Allowed, iheir shares 
^^f^ ab int^fUtta in. -thte property so MWght 
to be titoflfeTTed. l>eiiic^ represented by six- 
^^ ITariKeT tHAt tlie two children if 
tetiigover the iwhole property in equal shares 
vnlii \)e aUo^red. exexo-ption to the extent of 
^iKd^ths ot the valiie of the whole. 

Bit it is submitted, that exemption cannot 
be cdMdaked upon the value of the whole 
prapotj ^^lere it is acquired in uneqaal share 
at in thepKoaeut caee, nor would it have been 
bad the applioaAta required only a one-sixth 
fibaieeaoh and the remaining four-sixths had 
ban otharwiae diapoaed of. 

The olqeet of both aub-sections 2 and S (of 
section 19) aeema to have been to exempt 
children upcn ao much as represents their 
■haica aa heira ab intettaio in the property 
aac|uired by them whether a whole property 
or a share only in it. 

la the Case tf Richards, four of nine chil- 
drea aoqnired a four-fifth share in a property 
aad claimed exemption on four-ninths of the 
whole property, but it was held by the Ohief 
Jnstiee that exemption oould only be calou- 
latedtothe extent of four-ninths of the share 
aeqmred by them, tIb. four-fifths. 

For duty purposes the case of applicants 
laaat be treated as two distinct cases: the 
aequirement— f ^ matters not in fehat manner — 
by Jan Hendrik of one-sixth share, and by 
I^ooraaa Baamus of five-sixths share. 

The principle deeided in Richards's Cote was 
tfiat exemptioD was to be calculated with 
veeard to the share acquired and not with 
rcq^ard to the whole property. This being so, 
it followB that where a part share in a pro- 
perty only ia aoqoired or an interest in shares of 
dxSerent prc^Mntions, that exemption should be 
upon the yalue of such part share or 
that of the different shares. 
It ia intended to benefit descendants to the 
Ltent of eaeh one's interest in the property or 
share in the property acquired from the estate. 
A descendant therefore who acquires a siath 
share cannot benefit to the same extent as one 
who acquires a fire-sixths share. 

It ia bald that to claim exemption in full all 
heirs must acquire a property in equal 



The point raided in ^Bouwer's Case was of a 
different nature but the same principle was 
aphddtheie as in Richards's Case^ viz. : that an 
heir was only entitled to claim exemption to 
the extent of his od intestate share in the 
property soqght to be transferred. 

Mr. B«e-Inne8» Q.O-t ^or the applicants. 



Cur ad tmit. 

Postea (March 7th). 

The Chief Justice said : In this case we have 
considered the question as to the applicants* 
exemption from paying transfer duty. After 
carefully considering the Act, we are of 
opinion that the reading adopted by the 
Registrar of Deeds is correct It is quite con- 
sistent with the preyious decisions of the Court, 
and it is quite consistent with the terms of the 
Act. At the same time we would suggest to the 
Government that it would be well that some 
alteration be made in the Act, l>ecause there is 
certainly this inconsistency : that supposing 
there is only one heir in the estate and that 
heir takes over the property, he would be exempt 
from transfer duty altogether ; while if there is 
more than one heir, his exemption from transfer 
duty is only in respect of the share transferred 
to him. The Court has tried to put a construc- 
tion on the Act favourable to the applicants, 
but the wording of the Act is most unfortunate, 
and it is impossible to get over a construction 
of it which the Legislature never could have 
intended. The application must therefore be 
refused. 

Mr. Justice Buchanan : I have looked at the 
Act carefully with every desire to como to a 
reasonable rendering of it, but have found it 
impossible to do BO, The present wording of 
the Act makes its working most unequal and 
unjupt. 

[.Applicants* Attorney, G. Montgomerr- 
Walker.] 



COOK BBOTHBBfi V. COLONIAL 
GOYEBinfBMT. 






Tf 



• •» 



Sll 980. 



1896. 
March flth 
7th' 
8th* 

„ 11th; 

Cession of territory — International law — ' 
Private property— Concessions by bar- 
barous potentate — Native customs — Para- 
mount Chief— Treaty of 1844 with Faku 
—Sir Bartle FrcreV Proclamation of 1878 
— Cesfion of Pondoland iu 1894. 

Before the cession of Eastern Pondoland to 
the British Crown, Sigcau, the Paramount 
Chief, made certain concessions to the plain- 
tiffii of all the mineral rights in the country, 
the right to construct a railway, and the 
right to select a large extent of land as their 
own property, but, besides searching for 
graphite in a few spots, the plaintiffs did 
not act under their concessions, nor did 
Sigcau grant to them any particular land^ 



i 



108 



The native ctutonu did not recognise such 
concessions J andy even if they did^ there was 
no legal tribunal to enforce rights, but the 
Chief enjoyed despotic power to grant the 
rights if he had sufficient powtr to enforce 
them. 

After the cession of the territory to the 
British Crown^ and its incorporation with 
the Cape Colony^ the Colonial Government 
refused to recognise the concessions, where- 
upon the plaintiffs brought an action to have 
their rights thereunder declared as against 
the Government, 

Held, that the Court was not botuid by the 
principles of International law to declare or 
enforce the alleged rights, which could not, 
before the cession, have been enforced 
against the then sovereign. 

In the year 1878 the High Commissioner by 
Proclamation purported to depose Umqui- 
kela as Paramount Chief but took no t^teps 
to carry the deposition into effect, and con- 
tinned in several ways to recognise him as 
Paramount Chief, and after his death, the 
Government officially addressed Sigcan, his 
son and successor^ by that title. 

The cession of the territory by Sigcau was 
founded upon his right to mahe such cession. 

Held, that the Government cannot in this 
action dispute his title as Paramount Chief 



ThiB was an action for a declaration of rights 
and for £6,000 damages, instituted by Messrs. 
Thomas and James Charles Cook against the 
'Right Honourable Cecil John Rhodes in his 
capacity as Premier of the Colony, and as 
such representing the Colonial Ooyemment. 

The following were the material allegations of 
the declaration : 

On or about the 10th day of April, 1889, 
Sigcau, Paramount Chief of the Pondo nation, 
with the full knowledge, approval, and consent 
of his chie& and councillors in Council assem- 
bled, and acting for and on behalf of the whole 
Pondo nation and in accordance with Pondo law 
and custom, granted to the plainti£Es, their heirs, 
executors, successors, and assigns, in considera- 
tion of a cash payment of £2,100 sterling, a cer- 
tain mineral concession or lease in Eastern Pon- 
doland for a term of ninety-nine years, at an 
annual rental of £600. Copy of the said 
ooncesslQQ or let^se is hereunto annexed marked 



S. On or about the 24th day of October, 1890, 
Sigcau, Paramount Chief of the Pondo nation, 
acting as aforesaid granted to the plaintiffs, 
their heirs, executors, successors and assigns, in 
consideration of a cash payment of £1,720 
sterling, a certain railway concession or lease in 
Eastern Pondoland for a term of ninety-nine 
years at an annual rental of £900. Copy of the 
said concession or lease is hereunto annexed 
marked " B." 

1 On or about the 4th day of October, 1891, 
Rigcau, Paramount Chief of the Pondo nation, 
acting as aforesaid, granted to the plaintiffs 
their heirs, executors, successors and assigns, in 
consideration of a cash payment of £60, a lease 
of certain two pieces of land situat-e in Eastern 
Pondoland, each in extent not less than 3*000 
Cape morgen, for a term of ninety-nine years at 
an annual rental of £6. Copy of the said lease 
is hereunto annexed marked " C." 

6. On or about the SOth day of June, 1893^ 
Sigcau, Paramount Chief of the Pondo nation, 
acting as aforesaid, granted to the plainti&, 
their heirs, executors, successors, and assigns, in 
consideration of a cash payment of £2«200 
sterling, a lease of certain 160 square miles of 
land situate in Eastern Pondoland, together 
with certain other rights and privileges in the 
lease set forth, for a term of ninety-nine years 
at an annual rental of £400. Copy of the said 
lease is hereunto annexed marked " D.** 

6. The plaintiffs have duly carried out on 
their part all the stipulations aud conditions in 
the aforesaid concessions or leases, and have 
regularly paid to the said Sigcau the rents 
reserved in the said concessions or leases. 

7. Until the event referred to in the next 
succeeding paragraph the Pondo nation was an 
independent State, owning and occupying the 
territory known as Pondoland which included 
the aforesaid Eastern Pondoland, and was in no 
way subject to the government, jurisdiction, or 
control of Her Majesty the Queen in her 
Colonial Government, or of Her Majesty's High 
Commissioner. 

8. The territory known as Pondoland was an- 
nexed to the Colony by Act No. 6 of 1894, which 
Act was duly promulgated on the 26th day of 
September. 1894. Prior to such annexation the 
Colonial Government had notice of the afore- 
said concessions, 

9. The plaintiffs submit that the Colonial 
Government, by virtue of such annexation, 
succeeded to all the rights and obligations of the 
said Sigcau under the aforesaid conces-«-ion8 to 
the plaintiffs. 

10. The plaintiffs duly tendered to the defen- 
dant in his aforesaid capacity all rents due and 
owing by them under the aforesaid concessions 



f 



109 



I 



Bnitttiiemimex&t.ioii aforesaid, and are willing 

indRidT and tender on their part to carry out 

t^ftifnlmtioiis And conclitioiiB in the aforesaid 

QoaewioaB to^rarde tlie Colonial Government, 

tak the def endAiit, in liis aforesaid capacity, 

<lM&i0dU> accept tlie said rents, and wrong- 

foUy Kod uala^wrfully refuses to recognise the 

righto of the plaintiffs under the aforesaid con- 

eenona, or to allo'w tKe plaintiffs to exercise the 

ludrig^ii. 

11. By reason ot tlie premises, the plaintiffs 

weeatltled to a declaration of rights under the 

four ecmceasionB or leases hereinbefore referred 

to, tad to damages for the defendant's wrongful 

sad unlaw till refusal to allow the plaintiffs to 

exerciBe their rights thereunder. 

The plaintifiEs claimed : 

Ca) A declaration of rights under the four 
oonoeeBUms dated ref&pectively the 10th day of 
April, 18S9, the ^th October, 1890, the 4th 
October, ld9l, and the 30th June, 1898, and an 
order that they are entitled to all the rights 
and priTil^^ea conferred upon them by the said 
eooeeaslonB or leases. 

\}t) The sam of £6,000 damages, by reason of 
the defendant's wrongful and unlawful refusal 
tio allow the plaintiffs to exercise their rights 
vnder the said concessions or leases. 
(«) AltemstiTe relief and costs. 
The defendant in his plea admitted that 
certain documents, copies whereof marked A, 
B, G, and D were annexed to the declaration, 
were on the dates alleged executed by Sigcau. 
but he denied the other allegations in para- 
graphs 2, 8, 4, and 5 and the allegation.^ in 
paragraph 7 of the declaration, and referred the 
Court to the terms of the documents. 

Witii further referrenoe to paragraphs 2, 3, 4, 
&. and 7 of the declaration he said : 

(«) That at the dates of each of the said 
donimentSfe the British Government was the sole 
paramount authority in Pondoland. 

(fr) That without the consent of the British 
Ooremment, which was never obtained, each of 
the alleged concessions or agreements was 
and is of no legal force or effect 

(e) That the alleged concession or agreements 
are eontrary to the laws and customs of the 
PondoB. 

{i) That the consideration or value given or 
promised by the plaintiffs to the said Sigcau or 
his BQccessors is in respect of each of the 
alleged ooncetvions or agreements in law 
wholly inadequate. 

ie) That the said Sigcau and his councillors 
did not understand the meaning or effect of 
any of the alleged concessions or agreements. 

(O- That the alleged concessions or agree- 
ffepts are in anv case void for vap^e^es8 and 



uncertainty, and says that for each and all of 
the said recited g^unds the alleged concessions 
or agreements are bad in law. 

The defendant did not admit that the plain- 
tiffs had duly carried out the conditions of the 
agreement, and referred the Court to such proof 
thereof as might be adduced. 

He admitted the allegations in paragraph 8, 
but denied the contentions in paragraph 9, and 
said: 

(a) That before the annexation of Pondoland 
to this colony, to wit, on the 20th March, 1894, 
Pondoland was formally annexed to and formed 
portion of Her Majesty's dominions. 

(6) That at the time of such annexation to 
Her Majesty's dominions or at the time of sub- 
sequent annexation to this colony no condition 
was made binding upon Her Majesty, nor is Her 
Majesty now bound in either her Imperial or 
her Colonial Government to sanction, recognise, 
or give effect to the aforesaid alleged conces- 
sions or agreements or any of them. 

{jo) That even if Sigcau had been Paramount 
Chief of the Pondoe, and if the alleged conces- 
sions or agreements or any of them could have 
any legal force or effect (which the defendant 
does not admit) none of the said concessions or 
agreements have ever been carried out, and 
having regard to the terms and nature thereof 
they could give rise to only personal obligations, 
if any, attaching to Sigcau. 

{d) That the alleged concessions or agree- 
ments purport to affect portions of Pondoland 
wherein there resided chiefs recognised by the 
British Qovemment. who could not, according 
to native law and custom, be bound by the 
alleged agreements or promises to the plaintiffs. 

He admitted that the plaintiffs tendered to 
pay him moneys said to be due under the alleged 
concessions or agreements, and that he refused 
to accept such moneys, and he admitted that he 
had refused to recognise or allow the plaintiffs 
to exercise any legal rights under any of the 
alleged concessions or agreements, but he denied 
the other allegations in paragraphs 10 and 11 
of the declaration. 

Issue was joined on these pleadings. 

Mr. R. Solomon, Q.O., with whom were 
Mr. Shell and Mr. Webber appeared on l>ehalf 
of the plaintiffs; and Mr. Schreiner, Q.C. 
(Attorney-General), with whom were Mr. Juta, 
Q.C., and Mr. Giddy, were for the defendant 
Government. 

Mr. Solomon, Q.C., after explaining the con- 
tents of the plaintiffs' declaration and the 
nature of the concessions granted to them by 
Sigcau, and, after reviewing the plea of the 
defendants, said that with regard to the bona 
fidet of the plaintilEs he would say nothing more 



110 



than Uiat, If the evidence he would bring before 
the Court were correct, then the concessions ob- 
tained from Sigcau were obtained in a peifectly 
hona-fide manner. Some time in 1888 the plain- 
tiffs spoke to Sigcau with regard to the mineral 
conoession. Meetings of councillors and other 
people living in Pondoland were called — some- 
times as many as 5,000 people were present — and 
lifter discussion over and over again Sigcau 
agreed to grant the concessions, which were put 
in writing. Afterwards another meeting of 
counsellors was called, and the agreement was 
interpreted to Sigcau, not only by plaintiffs, but 
by his own interpreter, and Sigcau was prepared 
to say that he thoroughly understood the nature 
of the rights g^nted to plaintiffs. Af t«r the 
first concession was granted on the 10th April, 
1889, notice was published in the " Government 
Gazette " and in other Colonial papers, includ- 
ing the " Eokstad Advertiser." On the 6th Sep- 
tember, 1889, a letter was written at Sigcau's 
request to the Chief Magistrate of Kokstad, Mr. 
Stanford, and to the Chief Magistrate of 
Tembuland, Major Elliot informing them that 
these rights had been granted under the mineral 
concession. Mr. Scott was at this time the 
Resident Magistrate in Pondoland, and early in 
1890 Mr. Soott was aware of the railway con- 
cession. Mr. Scott told Sigcau as a friend that, 
although he had no wish to interfere, he should 
be careful as to what rights he was giving away 
in his country, when Sigcau replied that he 
thoroughly understood what he was doing. In 
the case of the railway conoession the same 
procedure was gone through. It was fully 
discussed by Sigcau's councillors and people at 
properly called meetings, and notice of it was 
also published in the *' Gazette " and in Colonial 
newspapers. The third and fourth concessions 
were both granted in the same way as the first 
two, but they were not published in the 
"Gazette" or in Colonial newspapers. From 
the plea which had been raised it appeared 
that the defendant would have to satisfy the 
Court that the plaintiffs, in obtaining these 
concessions, took advantage of the fact that 
they were dealing with savages, and that 
these people, in granting these rights, did 
not understand the extent and nature of the 
rights they were granting away. Then they 
came to the second issue, and that was the evi- 
dence as to whether these concessions were 
properly granted according to Pondo law and 
custom. No doubt a great deal of evidence 
would be brought before the Court as to the 
powers of the Paramount Chief in Pondoland 
with regard to the granting away of rights 
over the country— evidence much of the 
Hme nature ^b the evidence put befo.'e 



the Court in the case of Whiie Bros, v. 
The Colonial Government, By the evidence 
given in that case by Mr. Chalmers, the expert 
in native law, the real state of the law as to the 
powers of the Paramount Chief of Pondoland 
was practically described as empowering him 
to do what he chose so long as he had power 
to enforce his decisions. On important matters 
the Paramount Chief sujimoned his coun- 
cillors. He consulted with them, but gave 
his own sole decision, and that decision was 
binding. Th^t was practically the effect of Mr. 
Chalmers's evidence. The next issue raised ifi 
whether 

The Chief Justice asked if Mr. Chalmers was 
an expert in native laws referring to Pondoland. 

Mr. Solomon, Q.C. (continuing), replied in the 
affirmative. Mr. Chalmers had a thoroufiT^ 
acquaintance with native laws and customs^ 
Native law was pretty much the same from 
Pondoland to the ZambesL The next issue was 
whether at the time these concessions were 
granted Sigcau was the Paramount Chiet or 
whether at the periods named Her Majesty the 
Queen was the sole Paramount Power through- 
out Pondoland, and that in order to render 
these concessions legal the consent of the Im- 
perial Government was necessary. Evidence, 
principally obtained from Blue-books, would be 
put in to show that no such consent was neceso 
sary, and that Sigcau was the Paramount Chief 
of Pondoland at the time the concesBions were 
granted. Mr. Solomon did not wish to trouble 
the Court with a history of Pondoland. He 
would, however, briefly state a few facts in sup* 
port of his contention. On 23rd November, 1844, 
a treaty was entered into between the then 
Governor of the Colony and the Paramount 
Chief of Pondoland— Faku. That treaty waa 
in such terms as to render it apparent that it 
was considered to be a treaty between two in- 
dependent nations, and acknowledged Faku*a 
paramountcy throughout Pondoland. There was 
not a word in that treaty with regard to the para- 
mountcy of Great Britain over Pondoland, nor 
any stipulation as to any rights of the Imperial 
Government. The Chief Faku died in 18G7, and 
up to the time of his death no authority of any 
kind whatsoever was exercised by the Imperial 
Government within the territory of Pondoland. 
Faku was succeeded by his son, Umquikela, in 
1867. Before the death of Faku the territory 
was divided into Eastern and Western Pondo- 
land, and these divisioDs were practically inde- 
pendent. The paramountcy of Eastern Pondo- 
land was admitted, and these concessions were 
all within the territory of Eastern Pondoland, 
and did not encroach upon Western Pondoland 
at all, Dff fitters remained in thf si^me att^te 



Hi 



oniil in 1878, on the 4tli September, aproolama- 

tun was iaeued by Sir Bartle Frere ; and it was 

vponihat proclamation tbat the defendants 

bued their statement that Her Majesty the 

Qneen was the sole Paramount in Pondoland at 

the time theae ooncseesions were granted by 

SigoaiL In that proclamation it was stated 

that loyal chiefs would be allowed to deal with 

the British Qovernment as the Paramount in 

^xidoland, through the Beaident Magistrates. 

That was the statement in the proclamation 

upon wMch defendants based their allegation. 

He, howeTer, contended that that portion of the 

liroelamatlon had certainly become a dead letter. 

The Chief Justice : Would it not be m con- 

Teiuent, Ur. Solomon, if you were to postpone 

jwtt argument until after the evidence ? 

Mr. Solomon^ Q.G. Ccontinuing), said he would 
only say with regard to this proclamation, 
vpon vhich defendants based their case, that it 
bad become a dead letter. The evidence would 
ibov that no authority was ever exercised by 
the Imperial Government in Pondoland after the 
iBoe of this proclamation, and that Umquikela 
was reosKi^iaed as the Paramount Chief of Pon- 
doland. He was succeeded by Sigcau, who was 
also acknowledged as the Paramount Chief of 
Pondoland. As such he was acknowledged by 
an tiie chiefs, and by those present when those 
ooQcessions were granted. In 1885 a proclama- 
tJon was issued proclaiming the West of Pondo- 
land under the Protectorate of Her 
Vajeety the Queen. In March, 1894, 
Pondoland was ceded to the Imperial Govem- 
mentk ftnd the cession of Eastern Pondoland was 
made by Sigcau, and wai» made in exactly the 
same manner as were the concessions referred to 
in the plaintiffs' declaration. The most im- 
portant issue in the case was whether Sigcau 
was the Paramount Chiet or whether the Im- 
perial Government had such rights in Eastern 
Pondoland when the concessions were granted as 
to render it necessary that the Imperial Govern- 
ment should give consent to these concessions 
before they became binding upon Sigcau. 
The following evidence was then taken : 
James Charles Cook, one of the plaintiffs in 
the action, the other plaintiff being his brother, 
■aid that he first went to Pondoland in April, 
188S. He in that year met Umhlangaso, Sigcau*s 
Prime Minister, and he then went to Sigcau with 
the object of getting a mineral concession. 
He negotiated for this for about twelve months. 
Was present at meetings between Sigcau and 
kis people. About a dozen meetings were held, 
tnd at one as many as 5,C00 persons were pre- 
ttnl They lasted four, five, and six hours a 
<fay. Before the first concession was put into 
writing; the oonoeaslon was granted verbally. 



When the concession was put into writing he 
took it, with a copy, to Sigcau. It was read 
over to him, and interpreted by ^tness's in- 
terpreter (William Garner), and he then said 
he would see his people about it. Sigcau asked 
the meaning of several words, and finally ap- 
peared satisfied, and signed it. William 
Barnabas,, Sigcau's interpreter, was also 
present. The document was carefully 
read over and fully explained to 
Sigcau. Subsequently witness caused a notice 
of the concession to appear in the " Cape Gov- 
ernment Gazette " of May 10, 1889. He also 
caused notice to be inserted in the " Kokstad 
Advertiser." He had to pay Sigcau £2, ICO for 
the concessioQ, and the rent stated in the con- 
cession was £600 a year. Paid the £2,100 to 
Sigcau, and the rent had also been paid since. 
Nothing was owing. In addition to the public 
notices mentioned, he believed that notice was 
also given by Sigcau, acting on advice, to the 
Chief Magistrates of Tembulaad and Griqua- 
land East. Mention was made of Mr. Girling *s 
pretensions to similar concessions. A meeting 
was heard to decide between witness and 
Girling*s concession, and it resulted in 
witness's favour. On October 24, 1890, he 
got the " railway " concession. Before that 
he was negotiating for it for nearly 
twelve months, and they went on, by 
means of public meetings, in the same manner 
as those in the first concession. Sigcau always 
had his own int-erpreter with him. Was confi- 
dent that the concession was thoroughly ex- 
plained to, and understood by, Sigcau. The 
capital sum to be paid was £1,720, and the rent 
was £900 a year. Paid the £1,720 to Sigcau in 
gold, in the presence of Mr. Jones. The rent 
was paid up to the date of the annexation. In 
fact under all these concessions the rents had 
been paid up to the date of the annexation. 
On the 30th June, 1893, got the third concession 
of 6,000 morgen of land. That was obtained for 
the purposes of the railway. Generally speak- 
ing, exactly the same formalities were gone 
through in the negotiations and signing. £50 
was paid down, and the rent was £6 per annum. 
The fourth concession was granted on the 30th 
June, 1893. Was about fifteen months negotiat- 
ing for it. and the same formalities were gone 
through. The documents were repeatedly ex- 
plained to Sigcau. Under this £2,250 was to be 
paid to Sigcau, and he paid it by instalments 
and got the receipt for it from Sigcau. Had 
tendered the rents since the annexation to the 
Colonial Government. Had got receipts for all 
the rents paid to Sigcau. Witness knew the 
boundaries of Bastem Pondoland, and all the 
concessions were within Eastern Pondoland. 



112 



Cross-examined by Air. Schreiner : Captain 
Cooper was the agent of W. P. Taylor, of Johan- 
nesburg. Cooper was in Pondoland in 1889. Taylor 
was interested with witness in the concessions. 
Did not know that Scott wrote to Cooper warning 
him, before any concessions were given, against 
trying to get them. Witness's connection 
with Taylor began by Taylor offering 
to capitalise the concession. He ceded the con- 
cession to Taylor and was to get half the profits 
on the flotation. Cooper had nothing to do 
with getting the concession. Witness was f re- 
quenU; at the Gr^at Place. Did not work much 
through Umhlangaso. Supposed Umhiangaso 
would get something from Sigcau, but witness 
nad not offered him inducements to urge his 
wishes on Sigcau. Did not offer him £500, but 
he was to get something from witness for pro- 
viding labour. Witness's brother was present 
at all the negotiations, but his brother came to 
Pondoland three months after witness. Re- 
membered hearing before he (witness) obtained 
a concession that Qiriing had negotiated a con- 
cession from Sigcau to work copper near 
the Great Place, and that he should pay 
Sigcau £600. Girling drew out a con- 
cession on this, but it was never ex- 
plained to Sigcau, and the concession signed 
by him was not what Sigcau had agreed, and 
Girling never paid a farthing of the £600. 
Sigcau was therefore free to give witness the 
concession ; he had not already given the same 
concession to Gu'ling. Had never read Girling's 
concession. 

The Attorney-General said he was not there to 
defend Girling's concession, but to show the cir- 
cumstances under which the plaintiffs got their 
alleged concession. 

Cross-examination continued : The mineral 
concession was promised to witness verbally 
long l)efore Girling got his concession. Did not 
pay the money under such verbal promise. 
When Sigcau signed witness's first concession, 
did not know the particulars of Girling's con- 
cession. It was thrown on the table, but witness 
did not read it, and Sigcau said it did 
not matter, as Girling had not paid anything. 
Did not know anjrthing about Nagel's conces- 
sion, or whether it ran across the land (160 
square miles) granted to witness by the railway 
concession. The 160 square miles were not sur- 
veyed. It was to be left to the Chief to point 
out, but the concession might state that witness 
had the power to choose whichever 160 square 
miles he pleased. Would now be prepared to 
accept any 160 square miles the Government 
awarded. Was not aware that White Bros, had 
paid Sigcau certain moneys in 1891 for a similar 
concession granted in 1877, the mineral rights over 



Pondoland. Believed that no money was ever 
paid to Sigcau. Would not be prepared 
to say that all the names appearing on the corn- 
cessions were those of important chiefs in 
Pondoland. Some of them he considered im- 
portant chiefs. Xipu was an impo.tant chief, 
and he signed it. Thought Mr. Blenkensop got 
Xipu's signature. Q'ypo was now dead and 
Gonyolo was his successor. Xipu was not the 
only person signing, who, besides Sigcau, had 
land and people. Umhlangaso was also an 
important chief. Would not go so far as 
to say that Sigcau and Umhlangaso 
alone could grant all the mineral rights. 
There were many chiefs in Pondoland who 
occupied land, and had cattle and people at 
their back. Of this class, Xipu and Umhlangaso 
signed the concession. Would be willing to 
go through the signatures on the inineral and 
railway concessions and state which of them 
were chiefs with laud and people. Witness and 
his brother were now the only people interested 
in the concessions, with the exception of one 
gentleman, who had the option to take up a share 
in the mineral concession. The connection of W. 
P. Taylor, Dr. Pieterson, Mr. Maclntyre, and 
others had ceased. The concessions were amal- 
gamated and a corporation formed, but the 
existence of that syndicate had now ceased. At 
the present time no complete cessions existed, 
but there was a proprietary syndicate of their 
own for the purposes of the railway concession. 
Mr. Maclntyre's letters written in 1894 to the 
Government were in his capacity as a member 
of the corporation. They were written wiUi 
witness's cognisance. Had done mining and 
prospecting under the concessions. Was not 
aware that part of his mineral concession was 
over Xesibeland. If the document included 
Xesibeland, he, of course, would not wish that to 
be adhered to. Had done work near the coast. 
Had prospected in one place for about six 
weeks with Sigcau's knowledge. They found 
graphite, and were mining at that particular 
spot for anthracite coal. Sigcau never stopped 
the working at any spot, but he only asked wit- 
ness why he did not come and try somewhere 
near the Great Place. Could produce a 
note of wages paid to men for the different 
prospecting done. Under his concession he 
contended he could go to the territory of any of 
the sub-chiefs and do whatever the concession 
allowed him to do without consulting any of 
the sub-chiefs. If Mr. Rhodes had not repudi- 
ated the concessions he would not have oome 
now and asked the Colonial Government to 
confirm and ratify them. Had never said that 
so long as he got the railway he would not mind 
about the other concessions. 



113 



Re-examined by Mr. Solomon : The cession to 
Taylor and others was receded, and now witness 
and his brother owned all the rights. Witness 
had the proprietary right in every one of the 
ooncessiona. Had seen iSigcau's notice in the 
** Kokstad Advertiser ** repudiating any conces- 
sion to Girling. Witness had nothing to do 
with Sigcaa*8 putting that in the paper. Girling 
was now in the Transvaal and knew witness was 
bringing this action. With regard to Nagel's 
concession, Nagel obtained it on condition of 
giving Sigcan 10,000 rifles, which of course was 
impracticable. The Nagel concession was a 
swindle, and was never enforced. Regarding 
White's concession, knew that no money was 
paid for a long time to Sigcau, and would very 
much like to see Whitens receipt for such money 
paid. Some of the chiefs who agreed to them at 
the meetings did not sign witness's concessions. 
Did not know of any of the sub-chiefs 
not recognising Sigcau as the Paramount Chief. 
Some of the chiefs received part of the money 
witness paid to Sigcau under the concessions. 

By the Court : Was nearly seven years in 
Pondoland altogether. All that time was 
spent in negotiating with the Pondos for the 
concessions. His intention was to get the 160 
miles of land along the line of the proposed 
railway. W. P. Taylor up to a comparatively 
recent period had connection with the conces- 
sions with witness. Knew that Taylor got a 
Bill through Parliament for a railway in 
Western Pondoland. This was on another con- 
cession, on which there was less rent to pay than 
on witness's. Witness was interested in that 
icheme of Taylor's, but it had fallen through for 
want of capital. He paid some money to Xiou 
personally. That was because he hadto ride out 
to him. Had not paid any money personally to 
any other chiefs. 

William Gamer, of the Forests Department, 
ieposed that he was employed by the Cooks as 
an interpreter in their negotiations with Sigcau. 
Was interpreter at the negotiations for the first 
and second concessions, but was not present at 
the actual signing of the third and fourth. 
Barnabas, Sigcau's interpreter, was also present 
Cook read from a document (the first conces- 
sion), and both witness and Barnabas explained 
it to Sigcau. Many questions were put by 
Sigcau, who thoroughly understood it. Sigcau 
also thoroughly understood the second conces- 
sion. Witness did not interpret the third and 
fourth concessions. 

Cross-examined : Was educated at Salem and 
Fort Peddle up to the age of fifteen, since which 
time had lived amongst the natives. Knew 
their language and phrases well. Cook read 
the mineral conoessioo, iind witness translated 



it to Sigcau. Umhlangaso and several others 
were present. (Witness, at the request of 
counsel, here translated parts of the concession 
into Kafir.) 

Mr. Leary, the sworn interpreter, said that 
the witness had as " full consent," '* sole and 
exclusive rightw" 

Cross-examination continued: Sigcau under- 
stood fully what was in the concession, that he 
was giving the right over the minerals. With 
regard to the railway concession, Sigcau knew 
well what was meant by a railway. (Witness 
here rendered in Kafir what he had told Sigcau.) 

Mr." Leary said the witness had said, **They 
want to consent to have the right to make a 
railroad." 

Cross-examination continued : The Kafirs 
had a word for " railway." although they might 
never have seen one. (Witness here translated 
the fifth clause and other parte of the conces- 
sion, dictated by Mr. Schreiner, to test his capa- 
city as an interpreter.) 

Mr. Leary translated the witness back into 
English. 

He translated the word ** canals " as meaning 
"a hole in a mountain." 

Cross-examination continued: The Pondos 
called a piece of land an acre. So long as it 
was only twelve yards broad, they did not care 
how long it was. There were very many words 
in the concession that could not be translated 
into Kafir, but they had to be explained. 

Re-examined: Explained the documents 
several times to Sigcau, and Barnabas assisted 
in interpreting them to Sigcau. Words that 
could not be translated literally were thoroughly 
explained to Sigcau before they were formally 
read to him for signature. 

The evidence of William Buchanan Chal- 
mers, taken on commission at East London, 
stated that he was well acquainted with the 
language, laws, and customs of the natives of 
Pondoland. The Paramount Chief of Pondo- 
land had every power with regard to the 
alienation of land, but would summon his chiefs 
together, and after discussing' the question in 
all its bearings, would arrive at a decision. The 
consent of petty chie& to a concession would 
not be absolutely necessary, but might be 
obtained out of courtesy, but the Paramount 
Chief would be bound to summon his councillors 
together. 

John Solomon Howston deposed that he had 
lived about seven miles from the Great Place 
in Pondoland for a little over eight years, but 
off and on had been in Pondoland all his 
life. Sigcau always sent for him to act 
as one of his councillors when anything im- 
portiint ^as on. Was present when th^ n^ii- 



114 



way ooDceuion waB granted. Qarner and 
Barnabas interpreted the termB of the conoee- 
Bion to Sigcau, and witnees also explained it to 
him. Believed that Sigcau thoroughly under- 
stood. All the tribes that it was necessary to 
have there were present. Knew the customs of 
the Pondos regardini; the alienation of land. It 
was customary to summon the Amakwetshube 
and Amabella tribes^ these being the most 
powerful. When the third concession was 
granted witness acted as interpreter for 
Mr. Cook, and Barnabas acted as interpreter 
to Sigcau. The document was read over 
and thoroughly explained to Sigcau. The same 
thing happened with regard to the fourth con- 
cession. Never heard of any petty chief refus- 
ing to acknowledge Sigcau as paramount. Had 
heard these concessions talked about at many 
places in Pondoland. 

Cross-examined by Mr. Juta, Q.C. : Was not 
asked by Sigcau to pay a licence. Witness was 
exempted because he supposed Sigcau did not 
like to charge him rent. He did work for 
Sigcau. Had difficultieB with creditors in East 
Griqualand, and then went to Pondoland 
and farmed there. Married a coloured 
woman in Natal. Assisted Garner in 
translating the documents to Sigcau. Barnabas, 
Gamer, and witness all translated. (Witness 
was here questioned in detail as to how the 
different phrases in the concessions were con- 
veyed to Sigcau.) Natives had no idea of the 
extent of land by tenns ; the countiy had to be 
pointed out. Was present at the signing of the 
third and fourth concessions. There were pre- 
sent, when the conceesion of the 160 miles of 
land was signed, severals chiefs who had land 
of their own under the Paramount Chief Sigcau. 
Sigcau, he thought, could give away the 100 
square miles of land running through the terri- 
tories of sub-chiefs without consulting the sub- 
chiefa. The chiefs over whom Sigcau had such 
absolute power certainly had more than 160 
square miles between them. Could not say if 
the chiefs would leave their territory at 
Sigcau's bidding without fighting. 

The Chief Justice : Supposing the concessions 
are not enforced, would the Government refund 
the money paid to Sigcau 1 

The Attorney-General : The air would have to 
be cleared by a judicial decision before any 
negotiations on that subject could be entered 
into. 

Cross - examination continued : There were 
some powerful chiefs who were not present at 
the signing of the concessions. The two chiefs 
of the tribes Amakwetshube and Amaballa were, 
however, present, and their presence was all that 
was necessary. Gould not say if Sigcau, with the 



aid of these two chiefs, could turn out all tiibea 
occupying the 160square miles. Messengers were 
sent out by Sigcau four days before the signing 
to the different chiefs, but witness did not see 
them go ; but many chiefs did not come to the 
signing in response to the notice. Did not 
know that he was on Sigcau *b list asa ** Pondo,*' 
to be paid by Her Majesty's Government on the 
cession of Pondoland. Was not to get anything 
either from Sigcau or Cook. (Witness would 
not deny that he was to receive consideration 
from Cook if the case succeeded.) 

Re-examined : The Paramount Chief could at 
any time, he believed, make the petty chiefs 
migrate from their own to other lands. Sigcau 
was the most powerful and Paramount Chief. 

Mr. Schreiner, Q.C, said that Siyoyo, an 
important witness for the defence, was ill in 
Pondoland, and applied that his evidence be 
taken on commission, appointing Mr. Warner 
commissioner. 

Mr. Solomon, Q.C, said that the difficulty 
would be to get a gentleman to cross-examine 
the witness. 

Decision on the point was deferred pending 
the hearing of the other evidence. 

Sigcau then entered the witness-box, and in 
addition to the official interpreter was provided 
with his own interpreter. Sigcau said he was 
Parmount Chief in Pondoland up to the cession 
in 1894. (Blue-book quoted from, showing the 
terms of the ceFsion. ) When his father Umquikela 
died he (Sigcau) became Paramount Chief, and 
his election was notified to the High Commla- 
sioner. During the time he was Paramount 
Chief there were no chiefs in Eastern Pondo- 
land who did not recognise him as such. He 
was besides the Paramount the strongest chief. 
His power was that he could do what he required 
to do. On Important matters ne consulted hia 
councillors— one each from the Bala and Kwe- 
shubi tribes and the Pondos. Those were the 
men who settled all the things that came before 
him ; but if he did a thing they had to agree to 
it. Siyoyo was one of his sub-chie£B, 
also Manunda, who was a relative of hia. 
Nomvalo also was one of his councillors. He 
did not consult these latter ; he only reported to 
them what had been decided by the first three 
Knew the Cooks very well. Umhlangaro waa 
his chief councillor at the time, and he intro- 
duced the Cooks to him. They came and asked 
for the right to dig stones, gold, silver, and 
copper. He assembled all the men he had 
mentioned, and after three months they saw 
there was some truth in the matter. They 
delayed it for three months, being suspicioua, 
hat then they consented to what the Cooka 
waited to do. Had frequent meetings with tht 



r 



ll5 



Cooki. After disoiiBaiiKS the mmiten and so 
fbrth tkej broogiit liim a cli>euinent. He under- 
Itood that Uie document was to signify hiB 
couent, whieh lie sa've 'vritli an open h<sart And 
a ckv eye. The cloGnment was read to him 
thm times. Barnabas was his (Sigcau's) 
inkerpieter. Bamahas, an educated man, was 
DOW dead. Alter Bignins ^^^ document there 
wut great meeting, at w^hioh Mr. Girling was 
praent Before that He bad gtven a concession 
toMr.Qirlins»but Oirlins did not do what he 
hid ^mised to do aooording to the agreement. 
Girting did not g^&ve bim the money he had 
imniiied. He paid no money at all. Therefore 
be gave the conoeesion to Gook. Nobody else 
bat Cook was to have it. He then caused 
a letter to be sent to Mr. Stanford 
aad another to Major Elliot letting 
them know he had given the right 
to Oooka. After that the Cooks came to him 
again for something elee. To give them a place 
near the place that was given to the Germans. 
He gave them a place near St John's River. 
They wanted the place to build houses to live in, 
They came and asked for a railway shortly after 
they got the mineral rights. Gave them the 
right to the railway in the same manner as he 
gmwe them the right to dig. Gave them the 
rigiit to build places, and to take the railway 
alon^ from near the port of St. John's right 
throng the country to the border. At the time 
be gmwe the railway he also signed a paper. It 
was read over to him. Barnabas was the inter- 
preter. Had discussed it in the same way with 
hie conncillorB as he talked about the first. Was 
paid money for the mineral rights. £900 was 
the first amount. Knew very well what he was 
taking that money for. They also paid him 
£KO for the railway. They continued to pay 
him money up to the time the Colonial Govern- 
ment took the country over. After he had given 
the railway they came again and asked for some 
land, amd he gave them a piece. Something 
was said about cutting timber. He gave them 
the right to chop wood for any building 
they wanted. He thought about and con- 
flldered this last concession in the same 
way as the others. He .gave them 
the right to sell the timber they chopped 
in any part of his forests. That oonceesion was 
diaduaed by his councillors, and the document 
was folly explained to him. He knew Mr. 
8eott, from whom he received a letter (pro- 
daoed). Barnabas uaed to read to him the letters 
he refeived. 

Mr. SaUnaoD handed in the letter, which was 

dMiedNoremher, 1S94, and asked Sigcau whether 

H WMB trae he had granted the railway con- 



Examination continued : He got a letter from 
the High Commissioner about Mr. Scott, stating 
that Mr. Scott was appointed in order to bring 
aboui more friendly relAtions between thd 
Pondos and the Colonial Government. He 
(witness) objected to Scott coming, but Scott 
said he was not a magistrat-e, but was only sent 
to see what was taking place. He replied by 
asking Mr. Scott to go to where Mr. Stanford 
was at Kokstad. Mr. Scott, however, went to 
Fort Donald. Up to the time of the cession 
there was no officer of the British Government 
residing in Pondoland, nor anyone having 
authority over him (Sigcau). When he gave his 
country over he gave it to Mr. Stanford, at the 
same time telling him about the concessions he 
had given to the Cooks. He told Mr. Stanford 
that any inheritance he had he could not give 
to the British Government. He told Mr. Stan- 
ford he wanted his inheritance, and Mr. Stanford 
said he would refer the matter to Government, 
but since then he had not received the money 
from the Cooks, and that was why he was in 
court. 

By the Court : He told Mr. Stanford to U\\l 
the Governor he did not want to part with his 
forests, and still wished to receive his money, 
t'.e., the money from the Cooks. He did 
not tell Mr. Stanford more because he knew 
all about the Cooks' conoessions. He told Mr. 
Stanford that he wanted the money he was 
receiving from the Cooks to still oome to him ; 
also the forests. Mr. Stanford said he would 
see the Governor and give him a reply. He 
had never received such a reply. 

Cross-examined by Mr. Schreiner : He did 
not know how old he was, and did not know of 
any arrangements made by Faku, who died 
while he (witness) was a child. He did not tell 
Mr. Stanford anything about his following 
where Faku had previously sent his cattle. He 
gave a concession to Nagel, the German. Nagel 
had never kept to the agreement. Nagel said 
he was going away to get his family, but he 
never returned, Nagel broke his agreement. 
He (Sigcau) said he would not recognise Nagel's 
claims. Umquikela gave a right to 
White to work minerals over that part of 
his country which the Government had 
t-aken away from him, and at present occupied 
by the Xesibes. He received money for that 
concession four years ago. He never, however, 
received a penny from Girling. After he gave 
the rights to the Cooks he held a meeting, at 
which Girling was present, but he would have 
nothing to do with Girling. [Mr. Schreiner 
produced minutes of a meeting held on the 6th 
September, 1889, the same day Sigcau wrote the 
letters apprising the Magistrates of Cooks' oon . 



116 



oewionB, at which Girling was preeent.] He 
(Sigcau) asked Girling what he wanted there, 
and told him to go away. Girling offered him 
£800 before, but not on that day. On that day 
he would not have anything to do with Girling. 
He had not seen Girling einoe. [Mr. Schreiner 
read the minutes of the meeting to the witness.] 
Cross-examination continued: Nothing was 
said by Girling on that day about 
£2,000, nor did he (Sigcau) say any- 
thing to Girling about Western Pondo- 
land. He (Sigcau) signed Girling's docu- 
ment, but Giiiing bad not paid him threepence. 
He came first with ila800, and he refused, 
and told him to go away. Girling came again, 
but he would not have anything to do with 
him, and he gave the rights to Cook. He 
signed altogether four documents for the Cooks. 
No. 1 was for minerals. No. 2 for railway, No. 
3 for ground where the Germans had been— 
160 miles— a place where the railway came out— 
to build as much as they liked — a fair-sized 
space where the railway began, and another 
fair-sized space where the railway ended— no 
more. Also a fair width about as wide as 
the Court-room, for the railway to run along. 
There were two building places, one at Nagels 
and one at the boundary, and the railway went 
from one to the other. A "mile " was the 
width and length and breadth of it. 

The Chief Justice : He knows what a square 
mile is. 

Cross-examined : It would take him the whole 
day, and the next day as well, to ride round the 
160 square miles. 

The Chief Justice : It would be a ride of about 
fifty miles, and it would take him about the 
time he states. 

Cross-examination continued: Indicated the 
place to the Cooks, but did not take the Cooks 
over it. Three tribes lived on the ground. He 
meant that Cooks should live there with the 
people. The Cooks were to come and live along 
with the Pondos. He meant the Cooks to come 
to live and work there with his people. If the 
Cooks went over the sea they would have a 
right to send other people to dig. If the Cooks 
went over the sea he would let them send other 
people to dig if he (Sigcau) approved of them. 
Cook could send people in to work according to 
the agreement. Cook could send the Xesibes 
into his country to work if he liked. He put 
the money he received from Cook into his own 
pocket and to help anything that happened in 
his country. Had given Cook the rights for 
money received. Cook could decide what he 
would do so long as he paid the money. He 
was the greatest of the Pondos, and could move 



all other Pondos to make way for Cooks* people 
if he liked. But no other Pondos could move 
him. 

The Chief Justice said he did not see how the 
concession implied that the Pondos were to be 
turned off of the land granted. He read the con- 
cessions in the light of the Pondo customs at 
the time. 

Cross-examination continued : If the Cooks 
found gold in the Great Place they could oome 
and dig there. He would then move off to 
another place, because it was the agreement. 
100 years would be the time when his g^nd- 
children would be eating food. His children 
were very small yet. The eldest was jnst 
going to school. Did not count the years 
—it was not his custom. Begarding the 
payments he received for the different ooncee- 
sions, he got £900 for the first and £900 for the 
second, and £400 for the third. He was also to 
get money each year. When he went to Mr. 
Stanford at the time of the cession he told Mr. 
Stanford he wanted his inheritance. Mr. Stan- 
ford promised to tell the Government, but he 
(Sigcau) had never received a reply. He did 
not know why his country was taken away from 
him. He told Mr. Stanford he wanted to 
receive from him the £2,200 he had received 
from Mr. Cook. He had now come to court to 
get his money which he parted with. He 
wanted to know why he did not get it, and 
therefore had come there to see about it. 
Gave Mr. Hargreaves £600 to take care of 
for him, and £100 besides to edu- 
cate his children with. It was not to be 
given to the Cooks, because he (Sigcau) 
thought he had done wrong in taking 
it from Cook. Mr. Hargreaves bad 
since given him the £600 back. Only 
gave Mr. Hargreaves the money to keep for 
him. Did that because he was afraid that 
otherwise he would spend it. 

[A map was here handed to Sigcau.] 

Cross-examination continued : Pondoland was 
not like that; it was much bigger. 

Mr. Schreiner here read the names of chiefs 
with land and people under them, Sigcau com- 
menting on the importance of each. Some of 
these were present at the signing, and others he 
told after the signing. Mr. Stanford had con- 
sulted him as to a list of chiefs who should be 
paid in connection with the cession of the 
country. He thought the British Government 
should give these something. As to whether he 
gave these chiefs any portion of the money re- 
ceived from Cook, it was the custom of the 
chief to take such money for purposes 
of the country. [Witness was here croee- 
examined with the view of eliciting what he 



117 



kaew tboni the eonoeBBions.! Cooks were to get 
til mneTAlA, and Biones* aad oo«l. They could 
citopillthe foresie &s mucli as they liked. It 
was BO see ^ulciTi g l&im cuaythisg about the 
canon to the Britiab, becAUse he was still try- 
ing to find oat why his l&nd had been taken 
from him ; he hmd done no'tfam^. It was under- 
itood that nothing w^ould "be taken from them. 
Mr, Stanford aaid they would not be turned 
ovt; hit people were to so on as before, and he 
waa to goTem them, hirt ^hey were not to break 
the lawB. Knew Mr. Oarner, but he did not 
read the QocamentB to him : Barnabas did that. 
Gamer was on the Cook.B* side as interpreter, 
and Bammbaa waB on hiB aide. Qamer was 
pRscmt at the deliberations just like anybody 
else. HoosUm ^raa a man he trusted in, and 
oocn|Aed a position in the tribe. He did not 
pay any licence like other white men. Houston 
waa aleo present at the assemblies. Did not 
remember granting any land to a white man 
called lie If leur, nor any concessions given to 
white men in what he called the German coun- 
try. He (Sigcaa) could move his people from 
place to place to live just as he liked. 

Be-examined : The chiefs in Pondoland occu- 
pied land with his consent, and he could move 
tliem. The chiefs on Mr. Stanford's list (to 
reoeiTe oonnderation on the cession) all acknow- 
ledged him as Paramount. All the chiefs who 
were not present at the granting of the conces- 
ekMis or did not sign, knew of the concessions, 
and they receiTed cattle or other presents. There 
was not a single chief in the country who did 
not know of the concessions to G00&. Handed 
Mr. Hargreaves the £500 shortly after he 
(Sigcau) had the quarrel with Umhlangaso. It 
was not meant to be paid to the Cooks. It was 
only for safe keeping. Mr. Hargreaves tried to 
indiioe him to break his concession with the 
Cooks, but he (Sigcau) refused to do so. The 
eo nce s a ions were for ninety-nine years. 
Nquiliso, ^e Chief of the Western Pondos, was 
sent for to attend the meetings, and he sent a 
repretentatiTe to the meetings. 

By the Court : Remembered the day when he 
signed the document and gave it to Mr. Stan- 
ford, giring uis country to Her Mi^jesty the 
Qoeen. Before signing that Mr. Stanford did not 
tell him the concessions he had made 
to Cook would not be recognised. He 
(ISigcau) told him first they would have to 
be kept and Mr. Stanford said he would tell his 
OoTemment about it. Mr. Stanford did not 
tell him before he signed the cession that the 
coDcetsions woold not be recognised. Asked if 
Mr. Stanford had so informed him he (Sigcau) 
woaJd not hare signed the cession of his country 
to the Queen, Sigcau replied that he signed the 



ccFsion belieying that the concessions would be 
recognised. He felt obliged to sign the cession. 
They pressed him into it. 

Donald Strachan, at present a resident of 
East Griqualand, said he had been to Pondo- 
land on several missions from the Government. 
After Umquikela had been deposed as Para- 
mount Chief by the High Commissioner, he was 
looked upon more than ever by the people as the 
Paramount Chiel They regarded him as a sort 
of martyr. Witness was well acquainted 
with Pondo laws and customs. The power 
of the Paramount Chief in Pondoland was 
absolute. He was a despot if he chose to exer- 
cise his power. It was a rule for the Chief to 
consult councillors on important matters, but on 
very special occasions only those who were 
connected with the reigning family were called 
into the council. With regard to Siyoyo, he 
was often turned out of the councils, because 
they suspected he had a leaning towards the 
Government. There was no rule as to the 
number of councillors to be present on important 
occasions. He (witness) had settled important 
matters with the Chief when only two or three 
had been present, and they sometimes 
men of no consequence. The following 
belonging to Sigcau*s Great Place was 
numerically much greater than that of 
any other clan in Pondoland. As an 
instance of Sigcau*s authority, he turned his 
chief councillor Umhlangaso out of the coimtry. 
To do so he called every chief in Eastern Pondo- 
land to his assistance, and they turned out 
willingly. 

Cross-examined by Mr. Schreiner: Witness 
entered into details of Pondo history for a num- 
ber of years past, in the course of which ho 
stated that Nquiliso had recognised the para- 
mountcy of Faku*s house. 

Mr. Justice Buchanan observed that the his- 
tory which was being referred to in the evidence 
was like the history of the Scottish clans 300 
years ago. 

Mr. Shreiner asked the witness whether as a 
native expert he asserted that a native chief, 
paramount but under protection, could give to 
white persons anything he chose in his territory. 

Witness : The paramount chief has the power 
if he wishes to exercise it. 

The Chief Justice observed that the witness 
would have difficulty in answering until Mr. 
Schreiner explained what was meant by protec- 
tion. 

Mr. Schreiner : I mean by this protection a 
protectorate which every Court in the British 
Empire will recognise. That is a protectorate 
established by treaties. 



118 



Mr. Justice Upington : I attach very little 
weight to protection. What I should like to ask 
the witness is whether as an expert in native 
law he has ever known an instance of a native 
chief, even with the aa8ist«nce of his council- 
lors, giving away concessions of this large 
description, and whether he thinks that is 
according to native law. 

Witness : It is quite a new thing, my lord. It 
has never been known before. 

Are such grants foreign to native ideas 
altogether ? 
Quite BO, we have educated them up to it. 
In the course of further cross-examination the 
witness stated that the Imperial Government 
since the proclamation of 1878 deposing Umqui- 
kela, had allowed the Pondos to carry on their 
old customs of war, smelling-out, dec., and that 
they had done nothing to support that proclama- 
tion. 

Re-examined : After the proclamation Umqui- 
kela had more power than before, and since that 
proclamation the Colonial Government when 
dealing with the Pondos had dealt with 
Umquikela, and Sigcau after him. They made 
treaties with Umquikela after the proclama- 
tion. 

Mr. L. F. Zieteman, attorney at Kokstad, 
stated that he kept the minutes of the meeting 
which was held at the Great Place to consider the 
relative rights of the Cooks' and Girling's con- 
cessions. The discussion lasted something like 
ten days, and the concessions were gone over 
clause by clause. The Cooks maintained that 
Girling had included in his concession consider- 
ably more than what the Paramount Chief 
had given him, and that for that rea^n his 
concession was rightly rejected by the Para- 
mount Chief, and a subsequent concession given 
to then, the rights in which they strictly 
adhered to. The railway concession was brought 
up at the time of the meeting, but Sigcau said 
he could not deal with that, as the people had 
not been given notice of it. 

Cross-examined by Mr. Juta : The minutes 
only referred to the proceedings of the last of the 
ten days. If he had taken the minutes of the 
doings of the entire ten days, he would have 
had to have written a book. He had heard 
Sigcau say in his evidence that the reason 
Girling's concession was rejected was because 
Girling had paid nothing. 

Umhlangaso, late Prime Minister to Sigcau, 
was the next witness examined. He said that 
at present he lived at Kokstad. At one 
time he was chief coimoillor to Umquikela, 
who was his uncle. On the death of Umquikela 
he became chief councillor to Sigcau, and 
continued as such until he (Umhlangaso) went 



into rebellion in 1891. Since then he had not 
seen Sigcau until the present time. He re' 
membered when the Knglish took the port of 
St. John's, and that Mr. Straohan came to him 
and told him that Umquikela was not to be 
Paramount Chief any more. Umquikela, how- 
ever, continued to be Paramount Chief in 
Eastern Pondoland until the time of hia death. 
All the oiher chiefs in Kastem Pondoland 
acknowledged Umquikela as the Great Chief. 
The Great Chief could do everything he liked, 
but he first consulted certain councillors. When 
a thing was done without the councillors, word 
was sent to them that it was done, and they 
consented. He introduced Mr. Cook to 
Sigcau. Mr. Cook wanted permission to 
dig about the country for stones. Altogether 
the Cooks were seven months running to and 
from Sigcau's kraal about the matter. They 
refused at first to grant the concession, thinking 
that the Cooks wanted to take the ground away 
from them. During the discussions witaeas 
said the Government were bound to t«ke the 
ground some day, and that the best thing to do 
was to work tlie ground while they had it 
With regard to the railway concession, witness 
knew at the time it was discussed what a 
railway was, and explained it to Sigcau. He 
was not in rebellion against Sigcau at that 
time. 

Cross-examined by Mr. Schreiner: At the 
meeting at the Great Place, Sigcau said to 
Girling, " Tour agreement has come to an end. 
You have broken your word, and the agreement 
has come to an end." 

In reply to the Chief Justice, witness also 
stated that Sigcau said to Girling, ** I find in 
your concession you mention Pondoland East^ 
Pondoland West, and the Rode. It is not so. 
Tou want to make me quarrel with other people 
living in those places." 

By Mr. Schreiner : You had £300 a year 
promised you by Cooks for your consent ? — For 
my work; not for my consent. Continuing, 
under cross-examination, the witness said in 
connection with Nagel's concession that he 
went to Natal and saw Nagel there, but Uiat he 
signed no document in Natal. The document 
was signed at the Great Place. 

In reply to the Chief Justice, witness said 
that if the document stated that it was signed 
at Durban it was a mistake. 

In further cross-examination, Umhlangaso 
said he had nothing from Nagel for his serrioee 
in the matter. He paid the money himself for 
the education of his Bon and nephew. He had 
not seen Nagel since he paw him in Nat«l, and 
if Nagel came back now he would say the time 
for the concession was over. Nagel had no 



119 



right to bmnd over th€ oonoeflsion to anybody I 
else. If CcwkB won the present case be expected 
to obtain payment from them. The money he 
bad received from the Cooks was not paid 
because be bad been Prime Minister to Sigcau, 
but because of the work he had done. Sigcau 
wanted to give him some of the money he 
received from the Cooks, but he (Umhiangaso) 
told Sigcau to give it to some of the other 
oounciUors. 

Mr. Schreiner said he was trying to show by 
the cro9B-examination that in each case 
Umhiangaso was the central figure who had 
worked to the detriment of the Pondos. 

In reply to a question from the Chief Justice, 
Umhiangaso stated that he obtained £900 from 
the Cooks becajse he was the man who ex- 
plained matters to the Pondos ^o that the Cooks 
could get their concessions. 

Cross-examined by Mr. Schreiner with regard 
to the circumstances of his rebellion, 
Umhlang^aso said he wrote to the Natal Qovem- 
ment asking for assistance to establish a peace- 
ful state of affairs in Pondoland, and also to the 
Cape Government. 

Mr. Schreiner : Did you ever ask this country 
for help ? — Yes. 
Mr. Schreiner : They knew better. 
Rev. Oxle3' Oxiand, curate-in-charge of St. 
Augustine's Church at Durban, deposed that he 
was formerly in Pondoland. After Sir Bartle 
Frere's proclamation in 1878 he was appointed 
first British Resident. Previous to that was in 
Pondoland for five years. He was Resident 
from 1878 to 1883, when the abolition of the office 
took place. He was present on the Active with 
Lord Chelmsford when the landing at St. 
John's River was effected. An official map 
(produced) was given to him on being made 
British Resident, showing the limits of the pro- 
claimed territory. As Resident he was the eyes, 
ears, and mouthpiece of the Government. 
Amongst the Pondos themselves he exerois.d no 
authority whatever. He lived within ten miles 
of the Great Place. He resided there till about 
February, 1882 ; then the offices of magistrate 
at Port St. John's and British Resident were 
combined and he went to live at St. John's. 
When he had to treat with the Pondos he did so 
through Umquikela ; there was nobody else to 
deal with. He treated with Umquikela as the 
principal Chief of the Pondos. His orders were 
that Umquikela was deposed. He knew that 
in spite of the proclamation of deposition, 
Umquikela was even more the Paramount Chief 
than before. Ensuing on the proclamation 
there were two chiefs and one headman who 
offered to go under the British Government, 
Jojo, Nota and Siyoyo. 



Witness here related the circumstances under 
which Siyoyo and Nota went back to the para- 
mountcy while Jojo remained under the British 
Government. 

Examination continued : As far as the 
proclamation was concerned the Xesibes were 
the only tribe affected that understood the 
Pondo language. No power whatever 
was ever exercised by the British Govern- 
ment in Eastern Pondoland over the Pondos. 
The British subjects there were never protected 
by the British Government. As an instance, 
one Growder established a saw mill, and got 
into a difficulty with a petty chief. Growder 
came to witness for protection, and witness told 
him he was subject to the Pondo Chief. He ap- 
prised the Government of his action, and the 
Government approved, and that would appear 
in the Blue-books. Sigcau was recognised as 
Paramount Chief by the Government, and also 
by the chiefs, not only in Eastern but in 
Western Pondoland. He knew the Cooks 
slightly. The only way he had been connected 
with the concessions was that he, at the re- 
quest of W. P. Taylor, had made certain pay- 
ments to Sigcau. He discussed the terms of the 
mineral concession witli Sigcau. Sigcau 
thoroughly understood the concession, and told 
witness that there might be a difficulty if Cook 
went to dig for stones at kraals. He knew as 
much about the Pondos as anyone who had 
lived with them for twenty-one years could, 
and he paid emphatically that the power 
of the Paramount Chlsf was absolute. 
Sigcau was also more powerful than any of 
the other three tribes put together. His driving 
Umhiangaso out of the country was an in- 
stance of this. 

Cross-examined by Mr. Schreiner : His letter 
appointing him Resident was given to 
him in 1878. [Counsel here read the letter of 
instruction given by tbe Government to wit- 
ness.! That was the lett-er he received, but 
he denied that he was ever in a position 
to carry out the instructions. Tney were 
written by a person who had no knowledge of 
the oountiy. [Counsel here quoted from the 
Blue-books, showing the witness's reports to 
Government.] Shortly after he was appointed 
there was a meeting at the Great Place— on the 
2nd October, 1878. [Witness's report of the 
meeting was here quoted from.] He would 
adhere to what he reported at that time. He 
would simply reiterate what he had stated 
before in the box, that the sovereignty of the 
Queen was never admitted by the Pondos. He 
adhered to what he reported then. The 
sovereignty referred to only referred to the 
coast, and not to pondoland. He was not turn- 



120 



ioflf round now by any means to the Pondo view 
of the question after havinj^ filled the office of 
British Resident. What Mr. Schreiner had read 
was simply his report of what took place at the 
meeting at the Great Place. The British 
Government had no authority at that time, but 
he was obliged, according to his instructions, to 
try and bring the Pondos into accord with the 
Government. He told the Pondos that what 
had been done— the deposition —was irrevocable, 
but the Government afterwards made him a liar. 
Nquiliso was never independent, but was under 
the Paramount Chief. 

Counsel read a letter of 3rd August. 1878, from 
Umquikela's secretary to the Government that 
he had consented to a British Resident, but 
there was no admission in that letter of Um- 
quikela's submission. With regard to his 
(witness's) reports to the Government, he acted 
in pursuance of his instructions from the Gov- 
ernment that the action taken was inviolable. 
[Counsel continued to quote reports 
of witness.] He still stuck to his 
opinions expressed in the report. As an officer 
of the Government he told Umquikela what he 
had to tell him, that the British Government 
was the Paramount authority. He was the 
medium of communication between Umqui- 
kela and the British Government. He reported 
that "under the new riginU " matters were im- 
proving in Eastern Pondoland. That report 
was quite true. He had a meeting with the 
Pondos to discuss the boundaries of Jojo's 
territory. [Witness's report to Government of 
this meeting was quoted by counsel]. The 
gasetted proclamation, according to report, 
was shown to Umquikela about the time that 
Mr. Strachan conveyed the message. Umqui- 
kela never pleaded ignorance of the fact that he 
was not aware of the terms of the proclamation 
deposing him. 

The Chief Justice said that at all events 
there was plenty to show that the British Gov- 
ernment attempted to depose Umquikela. 

Mr. Justice Upington said that one difficulty 
in his mind was why the British Government 
wanted the formal cession at all in 1894 if the 
country was previous to that under its 
paramountcy. 

Cross-examination continued: He was with 
Mr. Taylor when Mr. Taylor offered an induce- 
ment to Mr. Stanford to join the Cook 8yn iioate 

Re-examined by Mr. Solomon : He ha i not a 
farthings worth of interest in these concessions. 
While he was British Resident ia Pondoland he 
did nothing to restrict the power of the Pondos. 
He was simply there as a Consul. 

By the Court: The communication made to 
Mr. Stanford by Mr, Taylor he did Qot remem- 



ber the exact terms ol It was in 1890 or 1891. 
Mr. Stanford was then Chief Magistrate at 
Kokstad, and had nothing to do with Pondo- 
land. Something was said that passed away at 
once. He was not, directly or indirectly, in- 
terested in any way whatever with the Cooks' 
concession, either in the past, present, "or 
future." He made the payments for Taylor 
purely as a friendly act. He was not aware 
that at that time all messages about Pondoland 
to the Government went through Mr. Stanford. 
He had never himself acquired land in either 
Eastern or Western Pondoland, but he had 
acquired land at Port St. John's, British terri- 
tory. 
This closed the evidence for the plain ti fib. 

BVroENOB FOR THE DEFENCE. 

For the defence, Mr. Schreiner called 
Walter Ernest Mortimer Stanford, who de- 
posed that he was Chief Magistrate of East 
Griqualand, which now included Eastern Pondo- 
land. He had spent all his life, with 
the exception of four years, in connec- 
tion with native affairs. He was a 
member of the Native Laws Commis- 
sion, and was as familiar with the Kafir 
language as with English. He knew Mr. 
Thompson and Mr. Brownlee, they were well 
qualified to interpret the language spoken by 
the Pondos. He had considered Cooks' conoea- 
sions. There was nothing in connection with 
native laws and customs to justify the granting 
exclusive rights of that nature. Assuming 
Sigcau to be Paramount Chief, the conceesions 
were not provided for by native laws and 
customs. The whole of the Pondo system was 
based on communal occupation of land. 
Alienation was unknown to them. According 
to the system of working, the Paramount 
Chief could not do such a thing without 
consulting his people; but if the Paramount 
could enforce his will with an army 
he could act as a despot He would 
not arbitrarily remove a tribe from one place to 
another. It would be entirely foreign to the 
Pondo system to oust natives from their land in 
order to put white men there. He had made 
out a list of those chiefs who had land and 
people and were important chiefs in Pondoland. 
If the names on the concessions were intended 
to represent the important chiefs he would 
say the intention was not carried out. He 
could not say if those chiefs who did not si^^ 
them were only Pondo subjects and not Pondos 
by blood. From his experience of native 
custom, the chiefs had to be fully represented 
at a meeting to decide any question, and a 
meeting was delayed pending the i^rrivi^l of all 



i2i 



fibieiB. This ^raa <loo« on. eudi. a qaoBtion as a 
dsmtioQ of A toomI. SLe oonsidered that the 
cbiflb on hU (wltneos^B) lis4 'would all be eum- 
moBMlonany ixxkportmiiL'fe question. He doubted 
^ Um Parmznount ^rould decide the 

qiH&m wlttkout 4ti.em^. It would de- 
pead oa tkie P»r«moiiot*B power; it was 
ilvayiaquestioo. ol poiwer* Si^caa as an io- 
findnal chief 1i»d. a stronger foUowingtiian any 
ottunfiku^ Witik T^ferex&ee to tbeee oonoee- 
nmsibe thoogkit tltat Si^oau oould never have 
iatfindftdtfaiera to l>e put in force. Cook might 
eomeanddis mit the Vcraala for instanoe. 
Tba Chief Jiuitice a»id that the Government 
ni^ giTe tkie ri^ht to aomeooe to do that now. 
Iha A.UorDe7-Qtener«l said Government could 
aoL Qcyvemmeikt h.ad pledged itaelf over and 
«TeK acaiik to the Pondoa to reapect their 

KxBBiin&Uon eontiniwd : ** Bole and ex- 

dvive" would be % term not to be explained to 

tbe Poedoa. Mr. Taylor appcoaobed him on the 

■Dbjeei of t^ ocmoeBaioa with a proposal 

through Mr. Oxland. At that time Mr. Scott^ 

ha thought, waa the m«dium for Pcmdoland 

laenagea to the Govenunent. Mr. Oxland was 

than, as at preeeat, a penonal friend of his, and 

he at the time thought there was more blame 

attanhing to thoae behind Mr. Oxlaad than to 

Mr. Oxland himaalf. fiegarding the status of 

thoae aattvea who had signed the concessions, a 

Jrv were ^iefi and a few were councillors. 

Jianj of them, however, wereof no standing at alL 

Sigcau was told by Major Blliot at the time 

the deed of ooision was signed how his country 

woold be governed, but witness told Sigcau that 

lie did not believe the British Government 

wotdd reeognise the concessions at all, and that 

if tbe Government did reoogmse the ocmoes- 

asoBa* being of land, the rents would not go to 

liim CSV^^n)* ^^^ ^ ^le Government. Sigcau 

aaid he would sign the cession, but would 

VETge lus claims on the Governor, and shortly 

after that Sigcau spoke to Mr. Rhodes about 



Mr. Bolomon objected: Sigcau was not cross- 
czamiaed on this point. 

By the Court : He held out no hopes to 
Sigcao that the concessions would be recognised, 
but told him the Government would decide. 

The Chief Justice said that was in accord 
Sigcan's evidence. 

Kxamination continued : Sigcau signed the 
of cessioD, and made his concessions 
a matter that he would urge on the Government. 
When the amount was fixed, to be paid to 
Sigcau by the Ooverament^ Sigcau knew he 
wooldnotgetibe rents under the concessions. 
fie told Sigoaa that the forsals would 



go with the land, and Sigcau said he would 
represent the claims to the Government The 
basis of the cession was that the Pondoa' hold- 
ings of land should be upheld. This referred 
only in his evidence to the mineral and railway 
concessions ; the third and fourth concessions 
turned up afterwards, and at the time of the 
cession witness was not aware of them. The 
Germans came in and lived in Pondolaad under 
Sigcau's concession, boi the Pondos allowed 
their cattle to wander over th^ land, and the 
Germans went away one by one. The last two 
Germans who remained quarrelled, and Sigcau 
took a rifle from them to prevent accidents. 
That was the last thing the Germans possessed, 
he thought. 

Cross-examined by Mr. Solomon : He received 
a notice from Sigcau (and also saw it in the 
'* Kokstad Advertiwr *') that he had given the 
mineral concession to Cook. He could not 
remember whether he notified the news to the 
Government or not. Frequently he saw the 
Cooks after that, but made no communication 
either to them or to Mr. Oxland about the in- 
validity of these concessions. Before the deed 
of cession was signed Sigcau told him he had 
given the mineral and railway concessions. He 
said be had given rights to dig and to build a 
railway. He thought Sigcau, with the exception 
of a few technical expressions in the documents, 
would thoroughly understand what he was 
giving away in the concessions. 

By the Court : Before the cession was signed 
Sigcau seemed anxious that the money to be 
paid under the eoneessions shocdd still come to 
him. 

Cross-examination continued : Regarding the 
meetings of the Pondos, Barnabas would be 
fairly well qualified to give, as an interpreter, a 
fair general idea of the documents to Sigcau, 
with the exception of tedmical or legal terms 
perhaps. His opinion was that the mineral 
concession was not valuable. Mr. Chalmers 
was an aeknowledged authority on native 
customa also the late Mr. Brownlee and Mr. 
Strachan. The Paramount Chief had the abso- 
lute power over the land. If he chose to act 
unconstitutionally he could do so if he were 
strong enough to carry out his wishes. 
Therefore, in important matters he would 
wish to consult chiefs who he might suppose 
would resist He did not think all the chiefs 
in Pondoland might have known of these 
concessions. The fact that some did not 
sign them might not imply that they did 
not know about them. On the occasion of the 
Noia Kraal treaty being made all the important 
tribes were present, although all the chiefs did 
sign. All who were present would not 



122 



neoessarily sign the actual document. There- 
fore, it was poseible that other chiefs beaides 
those sig^ng Cooks' concessions were present at 
the signing. Any matter discussed publicly 
would travel right through the country. He 
would say that if Mr. Cook's evidence was cor- 
rect, the news of these concessions being nego- 
tiated for or given would travel through 
Pondoland. If no petty chief came 
to the Great Place to protest it 
would not signify that they agreed to them. 
Most of the chiefs in Pondoland acknowledged 
the higher rank of Sigoau, and looked upon him 
as the highest power in the country, although 
they knew theie was a higher power 
coming on. Sigcau had sufficient power to en- 
force his will against any other one chief in 
Pondoland. From his experiences in travelling 
through Pondoland he had found that the tribes 
generally did not assent to these concessions ; 
some of them seemed to think it was a private 
affair o f Sigcau's and Umhlangaso's. Sigcau, 
if deciding a question affecting outljdng tribes 
would, according to custom, discuss it with 
those tribes. He was of opinion that the 
mineral concession was contrary to Pondo law 
and custom. He could not say if the Pondos 
had heard of such concessions being 
granted in other countries. He supposed 
that Sigcau would know something about 
diamond-mines. There were various procla- 
mations by the British Qovemment^ but he 
always treated with Umquikela (or Sigcau 
afterwards) as sole Paramount Chief in Eastern 
Pondoland, and nothing in the way of asserting 
British authority was ever done but through 
him. He was the only chief to deal with. 

Re-examined by Mr. Schreiner : He could not 
say if Pondoland lay in the coal measures or 
graphite. Mr. Chalmers was never in Pondoland 
as far as he was aware. Sigcau had no legis- 
lative or judicial power at his back. He had to 
satisfy his people or he would lose his power. 
Although matters publicly discussed travelled 
through Pondoland they froquently kept matters 
done at the Great Place very secret. The custom 
wa^ that the natives themselves enjoyed com- 
munity in land, but when the whites came in 
they had the exclusive right to any land given 
to them. The concessions, he believed, were 
detrimental to the Pondos, whom he thought 
had beei^ deceived. They were what would be 
called wicked documents. Many leading men 
in Pondoland had said that they did not know 
about the concessions. 

Re-examination continued : When he said in 
cross-examination that Sigcau was Paramount 
Chief he meant that he was acknowledged by 
the sub-tribes as the highest power. In Tembu- 



land they regard Gangeliswe as Paramoimt 
Chief, notwithstanding the annexation of Uiat 
territory. The term •* paramount " related to 
the position of the Chief as to the sub-tribes. 

By the Court: Gangelizwe gave certain con- 
cessions which were recognised by the Govern- 
ment after annexation, but there was no aliena- 
tion of land. He was doubtful at the time of 
the cession whether they would recogniBC 
Sigcau*s concessions to Cook. Supposing there 
had been no cession, his belief was 
that no work would have been done 
under the concessions. The German concession 
was an illustration. Sigcau himself not having 
consulted chie& with regard to the concessions 
those chiefs would have resisted any work being 
done, and then Sigcau would not have enforced 
them, although he might have received all 
moneys due from Cook. He did not regard 
these concessions in any other light than just a 
scheme on the part of Sigcau and Umhlangaeo 
to get money, and that they never could have 
been worked. Sigcau and Umhlangaeo would 
simply have taken the money from any- 
body else who came along. It was just a schema 
on their partw Sigcau would not have had the 
power to allow these concessions to be worked, 
as the people would have been against them. Hia 
power would go as far as he could enforce it. If 
he had told Sigcau point blank that the conces- 
sions would not be confirmed he would still, be 
believed, have signed the deed of cession. Sigcau 
looked upon the concessions simply as a ques- 
tion of bargaining. 

Mr. John Templar Home, Surveyor-General, 
said he had examined the different concessions, 
four in number. From the railway concession 
it was impossible to locate where the railway 
was to go. Therefore, the claim for land for the 
terminus of the railway and the 160 square 
miles could not be located. Government had 
purchased a plan of Pondoland from a sur- 
veyor at St. John's Biver, from which the official 
map (produced) had been made. The railway 
concession was not confined to Eastern Pondo- 
land. A map prepared in 1884 for Government 
purposes had apparently been used by the Cooks, 
and the ground claimed included some of the 
Xesibes' country annexed by the British Govern- 
ment since that map was prepared. The fourth 
concession to Cook would apparently cover GOO 
square mUes of land. 

Cross-examined: The area of Eastern Pondo- 
land would be more than the half of the whole 
of Pondoland, which was about 2,320 square 
milea 

Mr. John Healey Scott deposed that he was 
at present assistant magistrate in Tembuland. 
He came to South Africa in 1869. Ha 



128 



I^BMcttieii l>eei& nnoociatod with the nativeB. 
^ 1816 he entered, ^be Oo-vemment service, 
-^^ bad to administex' nal^i^e law^s and oustoine 
^ the asBiBt&xLce of njttive assessors. In 
l^be leiuiiied 4o Pondoland and remained 
thcRontiltheKiixieaLat^ioii. !He had made native 
Uw I itody, and. quite agreed with Mr. Stan- 
Mi view. In Ills opinion these concessions 
vere not T&lid^y native la-w. A native would 
Mtvndenlaikd. tlie term '* ninety-nine years," or 
uy o^er v^riocL ol years. They counted by 
VMmthft, taid after a year or two were quite 
"tort.'' Tb)6 power of tlie Paramount Chief would 
be ((Qalilie& by the assent of his people. There 
WIS ill tbfi native mind, a ^reat distinction be- 
tween an act of the chief which was arbitrary 
lad ta act which ^was in accordance with right. 
lateopimon Cooks could not hava violated a 
OB^ native right involved in their concessions 
exfiept force was used, and in that case 
^geaii would not have heen strong anough 
to enforce them. On one occasion when 
a meeting was to be held at the Great Place, 
ca Qovemmeni buaineeB, Bigcau postponed the 
■neeting, because he said the Pondo chiefs had 
not arrived. He aaw the Cooks frequently at 
the Great place. Cook complained to him that 
be could not get Bigcau to the point. Faku 
lilmaelf made Nquiliso independent years 
before 1876l That was however never fully recog- 
Bleed in Eastern Pondoland. He was British 
Seaidentt and was present when Sir Henry Loch 
wisited l^cau in 1891. The position taken by 
Sir Heniy Loch with Bigcau was that he, as the 
■U|Meiiie chief, had come to visit the country. 
The coart bard was there and he wanted to sing 
praises of Bigcau in the presence of the 
ipzeme <diief, but witness stopped him. This 
ivetved a question of precedence of Bigcau 
Sir Henry Loch which could not be 



Justice Upington : Was the bard any- 
like a Scotch piper 7 



led: Sigcau ordered him out of 
-fclie oonntiy and he went to a place outside 
Eaotem Pondoland. Witness never exercised 
may anthority in Eastern Pondoland as British 
Basident; never attempted it. The proclama- 
taon of Sir Bartle Frere of 1878 deposing Um- 
qnlkela made no diiference to the Paramount 
Chief as far as his position towards his own 
people was concerned. He saw the advertise- 
ment in the paper that Sigcau had given these 
lions, and reported the matter to the Go- 
It was contrary to native law and 
to give away any portion of his land to 
white men. They might set apart land, but 
ttey did not ulienste it* 




By the Court: Government bought land from 
the natives at St John's River; but the dis- 
posal of land to another Government would be 
quite another thmg to disposing of it privately. 

Cross-examination continued: In his opinion, 
the sale of the land at St. John's River by 
Nquiliso was not a constitutional act. Sigcau 
did not know what such a period as ninety-nine 
years signified. 

Re-examined .- Cook once told him that, hav- 
ing paid valuable consideration for the conces- 
sions, any Government would have to support 
them. 

Newton Ogilvie Thompson deposed that he 
was Resident Magistrate at 'Tsomo. Had been 
engaged by Government to translate documents 
in connection with the case. He had had sixteen 
years' experience as an interpreter. Witness 
was selected as an interpreter to accom- 
pany Mr. Rhodes, and was an expert 
interpreter. His instructions were to 
translate the concessions into Kafir. 
It took him two days of hard work to translate 
the four documents^about twenty-six hours 
altogether. He had great difficulty in finding 
terms equivalent to the technical terms. There 
was no Kafir equivalent signifying " sole and 
exclusive right*" for Instance. It could be con- 
veyed to a Kafir, but there was no literal trans- 
lation. The terms in the concession could only 
be conveyed to the Kafir mind in a roundabout 
way and by illustration. There was no equiva- 
lent for "square miles." It might have been 
explained to Sigcau that it would take him two 
days to ride round 160 square miles. It would 
not be possible for any interpreter to explain aU 
^he concessions at one meeting. The inter- 
preter would gloss over all the difficulties of 
the terms. The substance of what was in- 
tended could, however, be explained. 

Cross-examined by Mr. Solomon : He would 
not interpret such documents literally to an 
ordinary native, but would be able to convey the 
idea. Mr. Garner seemed to understand Kafir 
very well, and he believed he did speak Kafir 
very well. 

William Thompson Brownlee, Resident Magis- 
trate at Idutywa, deposed that he had for a 
greater part of his life lived amongst natives, 
and was an expert interpreter. He had trans- 
lated the concessions in conjunction with Mr. 
Thompson, and agreed with the evidence Mr! 
Thompson had just given. Natives were very 
fond of asking questions, and such documents 
as these they would require to discuss many 
times over before thoroughly understanding 
them. These documents were most difficult to 
translate. The conclusion he drew on hearing 
Mr. Gamer give his evidence wi^ that hf 



124 



wKMild not httve been able to translate the docn- 
nients to Sigoan, while Houston knew nothing 
about translating them. 

By the Court : He had never heard of coal 
being found in Pondoland. 

Rev. Peter Hargreaves, a missionary con- 
nected with the Wesleyan Methodist Church, 
deposed that he had resided in Eastern Pondo- 
1 and for thirteen years. He was not an expert 
in the Kafir language, but could understand it. 
Sigoau discussed with him in 1889 the question 
of the mineral concession he had given to Cook. 
Witness told the Chief he thought he had done 
wrong, and reminded him that there were already 
concessions of minerals to White and the 
Germans, and told him he ought to give Cook 
iSie money back. Sigcau said he would do that, 
and he gave him then £600, and said he would 
collect more money and return it to the Cooks. 
The money was in his pMseesion for some time. 
It was given to witness to keep, so that he 
might return it to Sigcau to give back to Cook. 
Witness was not to give it back to Cook. Even- 
tually Sigcau applied to him for the money, and 
witness gave it to him. 

Cross-examined : As a matter of fact no 
money was paid back to Cook. That was the 
only discussion he had had with Sigcau about 
the concessions. 

By the Court : He never told Cook that Sigcau 
intended to give him back the £60 \ He was 
aware that stkbsequent to that Cook paid more 
money to Sigcau. 

Ntolana, examined by Mr. Juta, said he 
was Chief of the Balas, and lived about one 
day from the Great Place. He was a chief in 
the time of Faku, and lived higher up than he 
did then. He had a large following — some 
Itaousands. In Faku's time he was always called 
to meetings at the Great Place ; also in tJmqu- 
kela*s and Bigcau's time. He knew that 
Oooks were in Pondoland and wanted a rail- 
road and permission to dig. Witness was never 
asked by Sigcau to attend the meeting on this 
matter; but on all other important occasions he 
was called. Sigcau ought to have called him, 
as well as all the chiefs, on the subject. He 
heard that Sigcau had given the mineral and 
the railway concessions to Cook. He did not 
hear about the right to take timber, or the 
giving away of large extents of ground to the 
Cooks. If the Cooks had come to his territory 
to chop timber, or to make a railway, or build a 
house, he would not have allowed it. He never 
heard about the concessions of Sigcau to Girling 
or to the Germans. He did not know if, accord- 
ing to native law, Sigcau had any right to give 
away land ; bttt he would not havb allowed any- 
body to take his land« 



[Counsel here read over the names of those 
who had signed the concessions, witness explain- 
ing the standing of each, from which it appeared 
that some had land and following, but not the 
majority.! 

Examination continued : All the Pondo chiefs 
should have been present to assent to the con- 
cessions or discuss all matters of importance. 
I With regard to the railway, he never heard that 
land had been given away. 

Cross-examined : Witness belonged to the 
Bala tribe, and Fadane was a big man among 
the Balas ; he was witness's uncle, and would 
represent the Bala tribe at the Great Place, 
though he heard his name was on the conces- 
sions. He (witness) had control over bis people, 
but had left them. He was told by Sigcau about 
the railway and mineral concessions, but did not 
know that meetings were being held at the 
Great Place. Neither witness nor his tribe 
received any money from Sigcau in respect of 
the concessions. Witness looked upon Sigcau 
as his chief ; but he would net consent to his 
land being cut up even if he received oompensa- 
tion« 

Re-examined : He was still the chief of his 
tribe, and led them to battle the last time. He 
did not know if Fadane would have the rinpfat 
to represent his (witness's) tribe at the Great 
Place. He never gave Fadane such permission. 

Kqouyolo deposed that at present he was 
regent over the people and land of Qipn, who 
was now dead. They occupied a large extent 
of country. He did not know the Cooks, and 
knew nothing about the concessions. Sigcau never 
sent to Qipu about them, as far as witnera knew. 
He never heard of any money being given to 
Sigcau by Qipu. Qipu used to be summoaed to 
meetings at the Great Place ; but Sigoau ncTer 
summoned him to talk about concessiona. If 
anybody authorised by Sigoau eame to dig on 
the land of his (witness's) people, he would not 
allow it. It was the custom to call all the 
chiefs together on important ocoasionfi. 

Cross-examined by Mr. Solomon : Qipu had 
been dead about four years. Bid not know any- 
thing about Sigcau having given Qipu part of 
the money of the Cooks. Would not agree to 
anybody turning him out of his land unless he 
knew of it. 

The interpreter, in reply to the Court, said 
that ** unless he knew of it " would mean unless 
he had been consulted. 

Xtola deposed that he was chief among the 
Pbndos, chief of the Amatangasi. He aerer 
heard about any concession beitig granted by 
Sigcau to the Cooks; was never oalled to the 
Great Place tp discuss it C^otmiel here re*d 



125 



the Dimes afl&xed to ttte different oonceseiotiB, 
tke wikik^B iiie«A.^vr]i.lle f^iving the status of 
etch.] 

Cron-examined \yy Itfr. Solomon' Sigcau did 
not Nfnd m meesLen^^r to liim. He ifTight have 
Knt to oChera l>iit not to him. Witness occupied 
land with. Slg^cau^a permission, but if 8igcau 
wid^ to Temorve Him be would do so, witness 
"would want to luiow why." 

By liT. Juta : He would not allow Sigcau to 
send a w^te man to come and turn him out. 
He did not know what he would do if Sigcau 
ttai a wMte man to turn him out. 

By \he Court : If Bigcau wished to turn him 
QotYie woold go to hia chief and say " Do you 
vsbtokillme?'' 

Kqimgwini deposed that he was a Pondo 
and mierpreter at the Great Place, and had 
hTed in Pondoland all his life. Ue was at 
Che Great Place prior to the concession s. and 
never heard of any meetings being held in 
conneetion with the concessions. He eaw Oook 
at the Qreat Place. He was at the Great Place 
some time. He did not remember how long. He 
did not remember a public meeting. He some- 
timea accompanied Umhlangaso on matters of 
importance. Witness heard no discussions 
aboai oonceesions. He heard nothing except 
on the day he put his name to the document. 
Sigcau called all the chiefs together if anythmg 
happened. Manandu was a chief of import- 
ance, and was a bigger man by birth than 
Umhlangaiso. He had heard nothing of the 
other concessions. He had looked at the names 
at the end of the concessions. Amongst the 
names were those of men he knew ; others he 
did not know. There were many chiefs in Pon- 
doland at that time whose names do not appear. 
Cross-examined by Mr. Solomon : There were 
ly people present who did not sign ; 
was always a large number of people 
ahont. Mr. Cook never employed witness to 
letters to Sigcau about the concessions. 
Re-examined by Mr. Juta : Witness did not 
the document the day he arrived there. He 
stayed at the Great Place all the time. 

This conclnded the evidence for the de- 



r. Solomon asked that the further hearing 
of the case should be postponed until the first 
day of next term. 

Mr. Schreiner thought the case should be 
postponed only until Monday, so that it might 
be finally decided whilst the evidence was fresh 
in the minds of the Court. 

The Chief Justice said the Court was prepared 
to sit on Monday. 

Mr. Charles Cook, recalled, stated in answer 
to the Court that he obtained the mineral con- 



cession in 1S89. They had since then only 
worked in three places, as they could not 
capitalise the concession until they got the rail- 
way concession. They knew there was coal and 
other minerals in the country, and they ceased 
to work the minerals imtil they got their rail- 
way. They got the railway conoession in 1890, 
and then the difficulties of capitalisation came 
in, because they wanted land to work the rail- 
way. This land was conceded by Sigcau in 1893, 
and then they had to wait until the capitalists 
decided. They were dependent on the capitalists. 
There were capitalists prepared to finance the 
concessions quite irrespective of annexation. 
He had confidence in Sigcau, who had never, 
during the seven years he had known him, 
broken his word. Had confidence in Sigcau, 
and the capitalists in Bngland were satisfied, 
and if annexation had never taken place would 
have had no difficulty in floating his conces- 
sions. Had correspondence to show that 

Mr. Stanford was also re-examined by the 
Court as to native laws and customs. In regard 
to Sigcau*s power, supposing the country not to 
have been annexed. Cook would have had no 
redress against Sigcau if Sigcau had ulti- 
mately repudiated the concessions. It de- 
pended on Sigoau's good faith. Regarding the 
money Sigcau would receive from Cook, it 
would not be devoted to any public purpose. It 
would be the Chief ^s own money to dispose of as 
he thought fit. 

By Mr. Solomon : Was aware that Sigcau was 
liberal to his subordinate chiefs, both in distri- 
buting his cattle and his money amongst them. 
Did not know if he so distributed this particular 
money. 

The Chief Justice, addressing Mr. Solomon, 
said that until they had heard the Attorney - 
Genera], the Court would assume: (1) That 
Sigcau knew the nature of the concessions at the 
time he gave them ; (2) that he was Paramount 
Chief of Eastern Pondoland. The two of the 
points which were uppermost in the mind of the 
Court, and on which they would like to hear 
Mr. Solomon, were whether the acts of Sigcau, he 
being a despot, could not be likewise despotically 
repudiated by him and how far the Government 
was bound to respect rights which could not 
have been enforced against Sigcau if no annex- 
ation had taken place; and whether rights 
which could not be enforced before could be 
enforced after annexation. 

Mr. Solomon, in addressing the Court, con- 
tended that according to international law a 
Power taking over a country was bound to 
respect all the engagements of the country 
taken over. He contended that it was proved 
beyond the possibility of doubt that in Baitern 



126 



Pondoland prior to the annexation Sigcaa was 
absolutely Paramount, and that he was recog- 
nised as such by all the other chiefs. It was 
urged on the other hand that Sigcau, being a 
despot, had the power to cancel the rights under 
these concessions if he felt so disposed. That, 
no doubt, was to a certain extent true, for 
there was no one to check Sigoau in the exercise 
of his arbitrary power, but he referred to the 
eyidence of Mr. Chalmers as showing that 
according to Pondo law and custom he had no 
right to interfere with the concessionaires. 
Moreover, he relied upon the fact — ^which was 
of the greatest importance in the present case — 
that Sigcau had never repudiated the eontracts 
and did not do so now. He had entered into an 
engagement with the plaintiffs, had received 
their moneys, and had no desire whatever to 
revoke the rights which he had ceded to them. 
The question of international law involved, 
viz., whether the Gape Colony was bound by the 
obligations incurred by Sigcau when he was 
the Paramount Chief of Pondoland, was one 
he thought, which admitted of no doubt, and on 
this point he referred to " Hal leek's International 
Law " (p. 336); Mepublw ofPerfi v. Dreyfv^ (38 
Chancery Div., p. 348); Stracha/n v. Colonial 
Government (4 Shell, 414). He contended thai 
inasmuch as Sigcau had not repudiated the 
contracts at the time the country was taken 
over they were binding on the Colonial Govern- 
ment, and the plaintiffs were entitled to ask for 
the declaration claimed. 

The Chief Justice referred to Cavieran v. Het 
GoavememeiU (1 Greg, 36). 

The Attorney -General, in the course of his 
argument, said that the Government was 
bound, in the general public interest, to 
strenuously oppose alleged rights which in- 
volved the giving over of the mineral rights, 
railways, and trade of the country to white 
adventurers (he did not use the term in any 
offensive sense) who obtained them from 
native chiefs under such circumstances. 
One of the concessions gave the plaintiffJB 
the right to trade in Pondoland free of duty, 
which would give them the monopoly of trade 
and be in direct conflict with the Customs law. 
He contended that the act of the Crown in 
deposing Umquikela in 1878 must hold good 
quite irrespective of any policy, good or bad, 
which followed such proclamation, and that 
therefore Sigcau, Umquikela 's successor, could 
not have the power of granting such concessions 
without the ratification of the Government. 
The case of Tembuland showed that, while the 
chief was allowed practically to remain para- 
mount as far as internal native affairs were 
oi^cerned i^fterthe apnexatioui the Govern- 



ment still was the supreme power there. He 
contended that supposing no cession had 
taken place, Sigcau, even if he had so desired, 
could never have enforced the conditions in- 
volved by the concessions on subsidiary chiefs, 
and that the plaintiffs would have only been 
able to rely on the precarious will of Sigcau. 
Regarding Mr. Solomon's argument on inter- 
national law, he contended that those laws 
referred only to the relations between civilised 
countries, and could never hold good where one 
of the countries was barbaric. 

Mr. Solomon replied. 

The Chief Justice said: The voluminous 
evidence given in this case relates mainly to the 
two questions whether Sigcau understood the 
nature of the concessions which he granted to 
the plaintiffs and whether he was at that time 
the Paramount Chi«f of the Pondos. Upon 
neither of these questions do I entertain any 
doubt. The Chief was not misled in any way, 
but understood the terms of the concessions as 
well as any uncivilised and uneducated potentate 
can comprehend documents dealing with such 
complex questions as servitudes upon land. I 
am satisfied also, after carefully reading the 
Blue-books put in as evidence, that he was the 
recognised Paramount Chief of the Pondos. He 
was so recognised not only by the greater number 
of his tribe, but by the British Government 
itself. It is too late for the Colonial Govern- 
ment to rely upon the deposition of Umquikela 
by the Proclamation of 1878, seeing that, after 
that date, the Government in various ways con- 
tinued to treat him as the Paramount Chief, and, 
after his death, officially addressed his son and 
successor, Sigcau, by that title and never in any 
way questioned that title. The very document 
by virtue of which the British Crown acquired 
the sovereignty over Eastern Pondoland waa 
founded upon Sigcau's right as Chief to make 
the cession, a right which only the Paramount 
Chief could exercise. The difficult and impor- 
tant question in this case is whether the rights 
which the concessions purport to confer upcn 
the plaintiffs are enforoeable by action in this 
Court against the Government which has 
acquired the Paramount Chief's rights of 
sovereignty. It is a principle of international 
law that, where sovereignty is acquired by 
cession, the new Sovereign assumes the duties 
and legal obligations of the former Sovereign 
with respect to private property within the 
ceded t«rritory. In the words of Chief Justice 
Marshall '* the new Government takes the place 
of that which has passed away." The difficulty 
lies in the application of that principle, with aU 
its legitimate consequences, to grants of land 
promised and servitudes on land imposed by a 




127 



^^ii^^uwapoieirfcm'te rnlins o'ver barbarous tribes 
^i\M»npiiT«,te propei^y in land ifi unknown. 
Wo»^««dedlai8 territory to th© Britigh Crown, 
%i|CM \iftd e^ecxLtecl tl^e four documentfl in 
<9[Mtu>ii\)y "wliioli. lie p^'^n?^^'^^ ^ convey to 
the pUintiSa t\ie rielx't to select large tracts 
of lind ioft their onm. esLclusive use as well as 
the ng|b.\ to all tlie m.ixierals in the countryi 
udtoconatroct a Tail^ev&y tlirough the country. 
tht Qonuderation for tliese extensive encroach - 
mento upon t^e tribal tenure of the land was 
made payable to tbe Paramount Chief indi- 
iidiia\iy. H.e migbt, as a matter of favour, 
distxibute a portion among his petty chiefs, 
but these waR no obligation on him to expend 
any portion, tor the benefit of the tribe as a 
vhoW. In the decision of important matters 
he waa geneTally aaaisted by his petty chiefs. 
The erideaoe is very vague as to how far he 
was \)ound to act upon the advice tendered 
to him and as to the particular chiefs he 
wa£ bound to aummon to his assistance. In 
granting the eoncesaionB to the plaintiffs he 
was supported by some of the chiefs and 
headmen, but some important chiefs neither 
signed the documents nor consented to the 
aUenatum. There is evidence to show that 
a Paramount Chief is practically a despot 
m the sense that, without even consulting all 
bis petty chiefs, he might confer privileges 
which are repugnant to the usages of his tribe, 
but this right is qualified by the condition that 
be has sufficient power to enforce such privi- 
leges. Such a qualified right would apply to 
ev«ry unconstitutional act of a Sovereign, 
wbetiier civilised or uncivilised, and it is cer- 
tainly not a right which international law 
would compel this Court to recognise. More- 
over if Sigcau is to be recognised as having 
been a despot without any restraint on his 
abeolnte power, he must be so recognised for 
all purposes. If he could make the concessions 
for the personal profit of himself and some 
of his petty chiefs and contrary to the interests 
of the whole of his tribe he could equally revoke 
the concesfiions for the benefit of his tribe. He did 
Bot, it is true, revoke the ooncessions before 
he ceded his country, but he did not make the 
reoogniticni of those concessions a condition 
of the cession. He admits that he would have 
eeded the country even if he had known that 
the conceesions would have been igpnored, 
alttough he added that he believed they would 
be reeognised Under theee circumstances it is 
diffieolt to hold that the Colonial Govem- 
mcot is bound to uphold the concessions 
however injurious they may be to 
the interests of the inhabitants of the country 
Ukkea over. The difficulty becomes still greater 



when it is borne in mind that the native 
customs, such as they are, do not recognise such 
concessions and that even if they did there 
never existed any legal tiibunal which could 
enforce the rights purported to be granted by 
the concessions. Upon the question of custom 
the evidence of Mr. Strachan, one of the 
plaintiffs' most important witnesses, is very 
significant. Being asked whether, as an expert 
in native law, he had ever known an instance of 
a native chief, even with the assistance of his 
counsellors, giving any concessions of this large 
description, his answer was: "This is quite a 
new thing ; it has never been known before.'* 
In answer to the further question whether it 
was utterly foreign to native ideas he answered . 
" Quite so, we have educated them up to it." The 
education, however, has been entirely confined 
to the chiefs, and has not lasted so long or been 
so widespread as to establish any fixed custom. 
Servitudes such as the concessions purport to 
create upon the land held by the people have 
only been sought after of recent years and some 
of them had been granted by Sigcau to previous 
applicants. When he found he could get better 
terms from the plaintiffs he did not scruple to 
put an end to a concession which he had 
previously granted to Girling. He stated 
in his evidence that he revoked the 
concession to Girling because the rent 
had not been paid, but the evidence 
tends to show that the rent was not yet 
due at the time of the repudiation. There 
was no Court of law to declare Girling's rigbte 
as against Sigcau, and if the Chief had revokea 
the plainttffs' concessions there would equally 
have been no remedy for his breach of contract. 
Up to the date of the cession the concessions 
had not yet been carried into practical effect. 
It is true that the mineral "graphite " had been 
sought for under the mineral concession, but 
no railway had been commenced imder the 
railway concession, nor had any land been 
actually granted by Sigcau, or taken posseBsion 
of by the plaintiffs under the land concessions. 
The land laws of this colony, to which 
Eastern Pondoland has been annexed, contain 
no provision for the granting by Government 
of tracts of land or servitudes on land such 
as are promised by the concessions. How then 
can the plaintiffs' rights be declared as against 
the Government? If declared, how are they 
to be enforced without any legislative sanction 
for the forms of grants which will have to be 
ordered? The new Government took over the 
legal obligations of the old, but the concessions 
created no legal obligations because their exe- 
cution depended solely upon the will of the 
Paramount Chief and there exisied no possible 



198 



ttieAUB of enforcing them. If the new Goyem- 
ment can be sued in the Courts of this oolony 
for the enforcement of the plaintiffs' alleged 
rights, is it to be held liable also in respect 
of the concessions granted to White Brothers 
te Girling and to Nagel? These persons are 
not before the Court and I only mention them 
to show the difficulties which surround the 
plaintiffs' case. Under all the circumstances 
I am of opinion that no legal rights were 
acquired by the plaintiffs against ISigcau as 
can now be enforced against the GoTernment 
and that the plaintiffs must fail in this action. 
In this view of the case it becomes unneces- 
sai7 to inquire whether the Crown Liabilities 
Act of 1888, which refers only to claims arising 
out of contracts entered into on behalf of the 
Crown, is applicable to the enforcement of 
contracts made by a foreign soYcreign of a 
territory before its cession to the Crown. 
It is unnecessary also to inquire whether the 
concessions do not coBBtitute a breach of the 
18th article of the treaty made by Faku with 
the British Crown in the year 1844. But while 
holding that, in strict law, the plaintiffs cannot 
succeed in this action, I am bound to add that, 
in my opinion, they have strong claims to the 
favourable consideration of the Government 
and Parliament of the country. They haye 
expended much time and money in acquiring 
the concessions and their conduct throughout 
appears to me to have been honest and honour- 
able. They had the example before them of 
the Swazi concessions and the Matabeleland 
concessions which have been recognised by the 
Imperial Government, and they might fairly 
have believed that the concessions honestly 
acquired by them would not be entirely ignored 
by any civilised Government taking the place 
of Bigcau. It may be impossible for the 
Government to give effect to the concessions in 
their entirety, but that is no reason why Parlia- 
ment should not give the plaintiffs some compen- 
sation for the repudiation of concessions which 
might have been very valuable to them if there 
had been no cession to the British Crown. It is to 
be regretted that the defence which has now 
been sustained was not raised by way of excep- 
tion to the plaintiffs' declaration. Such a 
course would have saved considerable expense, 
and would have rendered much of the evidence 
given in the case wholly unnecessary. Seeing 
that no such exception was taken, that the 
plaintiffs' conduct has been perfectly straight- 
forward, that the action was by no means an 
unreasonable one, and that it was for the public 
interest that the important legal questions 
raised should be judicially determined, I am of 
opinlpn that, in giving judgment for the defen- 



dants, the Court should order each party to 
bear their own costs. 

Their lordships concurred. 

[Plaintiffs' Attorneys, Messrs. Tredgold» 
Mclntyre & Bisset; Defendants' Attorneys, 
Messrs. J. & H. Reid & Nephew.] 



SUPREME COURT. 



[Before Sir J. H. de ViLLimig, K.C.M.G. (Chief 
Justice), and Mr. Justice UPDraTON, 
K.C.M.G.] 



PROVISIONAL ROLL. 



COLONIAL O&PHAK CHAJiBIS V 
8TBWABT. 



. f 1896. 
(Mar. 12th« 

Mr. Tredgold applied for provisional judgoieai 
for the sum of £317 4s. 
Provisional sentence granted. 



MALMB8BUBT BOARD OF BXIOUTOBS V. BABBOV 

Mr. Shell moved for provisional sentence (1) 
for the sum of £62 Is. 6d., balance of interest 
due to 16th June, 1S94, upon a bond of £2,800^ 
dated 6th August, 1892 ; (2) for the sum of £88 
Us. 8d., initerest from 16th June, 1894, to Slat 
December, 1894, due on a bond of £2,800 now 
reduced to £2,726 ; (3) for £4 16e. 6d., balance 
of premium of insurance to 16th June, 1896. 

Provisional sentence was granted as prayed. 



SMITH V. THEBOM. 

Mr. Watermeyer moved for the final adjudi- 
cation of the defendant's estate. 
Order granted. 

BBDBN v. BOTHA. 

Mr. Graham moved for provisional senteace 
for the sum of £2,000 due on a bond, with in- 
terest from Ist July, 1894. 

Order granted. 

AJiFOBD, WILLS ASD OO. V. BBIMK. 

Mr. Benjamin moved for proTisional judg- 
ment for the sum of £88 17s. 3d. 
Provisional sentence granted. 



MASTBB V. DISMOBB'S BZBCUTBUL 

Mr. Giddy applied for an order calling upon 
the executrix in the estate to file an acoount. 
Order granted. 



r 



u% 



DK TIIil^IBBS V. ▼Air DTK. 

Mr.Tredgold applied for proTisicnal sentence 
forthcnmof £30. 
PravinoiLal lenieiioe granted. 



nSDLKT AKI> OO. V. ir¥.A Aa AND ANOTHBB. 

HT.BofthanMi applied for judgment for the 
■amotM216A.4dL 
Qnaied. 



E068 ASn> GO V. LOTKB. 

UT.Tiedgold applied for judgment for the 
loiii Off £199 Ob. M. 
GiBBtod. 



aOOIT V. DODWBLL. 

Mr. McLachl«n moTed for judgment for the 
•am of £28 3b. 
Granted. 



Ex parte thubston whittle. 

Mr. Wateraieyer mored for the rehabilitation 
«f this inaoheBt. 
Order granted. 

GBNBRAL MOTIONS. 



BIIADFORD V. GSBBN AND ANOTHKB. 

Mr. fienjamin applied for an order for the 
ramoral of the suit between the parties from 
tfala Courts for trial, to the Circuit Court to be 
held at Aliwal North on or about the ilth April 



Order was granted by consent. 



MINBB V. KDKBSBLBT WATBBWORKS. 

an application by the re- 
for leave to appeal to Her 
the Queen in her Privy Council 
the two judgments of this Court 
delirered on the 1st inst. in the suit between the 



Mr. Searle, Q.C.. and Mr. Joubert for the 
appKcants. 
The order was granted. 



IN THE MATTBB OF OATHASINA B. B. OTTO. 

Mr. Graham moved for the appointment 
of a emrator ad litem to represent the 
said Otto, alleged to be an imbeoile, 
in the proceediogs about to be instituted in the 
OndtBhoom Circnit Courts to have her declared 
of nnnnod mind and incapable of managing 

hetnfUdn. 

as Cdnrt granted the order as prayed, and 
9fpmM Mr. TredteoW ouraior ad Men. 

8 



HUDSON, TBEBDE AND 00. T. OOOFBK. 

Mr. Juta, Q.C., applied for an order for the 
removal of the suit between the parties for trial 
to the Circuit Court to be held at George on dr 
about the 25th instant. 

Mr. Innes, Q.C., asked that the case should be 
heard at Knysna. 

The Court granted the order, the bar to the 
defendant's plea to be removed, costs to be costs 
in the cause. 

PARKIN AND OTHERS V. LIPFEBT AND OTBEBfl. 

This was an application by the defendant 
Lippert for the issue of a commission to take 
evidence in London of one August fiarsdorf, a 
material witness on behalf of the said de- 
fendants. 

Mr. Searle, Q.C., for the applicants. 

The Court granted the order, Mr. Maokamess 
being appointed the commissioner. 

THE PETITION OF SUSANNA W. WILLBMg. 

Mr. Tredgold moved for leave to sue by 
edictal citation in an action against her hus- 
band for restitution of conjugal rights, 
failing which for divorce, by reason of his 
malicious desertion. 

Order granted, returnable on the 1st August* 
in the terms of the prayer, personal service to 
be effected if possible. 



IN THE INSOLVENT ESTATE QF CUBOBOB BDWABD 

MANDT. 

Mr. Tredgold applied for an order to 
make absolute the rule niH restralBlng 
Geo. 8. T. Mandy from removing any 
property now on the farm Pelkm. near Lady 
Grey, and from alienating or disposing of any 
stock or produce removed from the said farm 
since the sequestration of the said estate. 

Mr. Tredgold also applied for an order 
varying the decision of the Resident 
Magistrate of Aliwal North as to the 
votes recorded at the third meeting of 
creditors of the said estate, whereby it is alleged 
that the interests of one Louis F. Heese and 
other creditors will be prejudiced, on the ground 
that such decision was illegal. 

Mr. Searle, Q.C., for the respondent. 

The Court made no order on either applica- 
tion. The interdict was discharged; costs to 
come out of the estate. 



IN THE liATTBB OF THE GAPE OFOOOD MOPB 

BANK. 

Mr. Innes, Q.C., moved for an order 
authorising the official liquidators to des- 
ixoy the books in their poesessioB re* 



130 



lating to the business of| the bank, 
to pay oyer unclaimed moneys to the Master of 
the Supreme Court, and to file the records of 
the liquidation with the Registrar. 

The order was granted authorising the des- 
truction of the books. 



WHITTING V. WHITTINO, 

Mr. Watermeyer moved for the removal of 
the suit between the parties from this Court for 
trial to the Circuit Court to be held at Oudts- 
hoorn on or about the 21st inst. 

Order granted. 



8TABBBB V. MKBZEB'S EXECUTOR. 

Mr. Innes, Q.C., moved for leave to 
the defendant to sign judgment against the 
plaintiif in the suit between the parties, by 
reason of his failure to proceed with his action 
to debate the liquidation and distribution 
account framed by the said executor within the 
period prescribed by the rules of Court, and for 
costs. 

Mr. Tredgold for the respondent, the plaintiflE 
in the action. 

The facts are briefly these : 

Moore in his capacity as executor dative of 
Andrew J. P. Keezer was sued to debate certain 
account framed by him as executor. Moore 
oflEered to debate it before one of certain persons 
named by him, and Syfret was agreed upon 
jointly for the purpose. 

Moore proceeded thereafter to bar Slabber 
from declaring or making claim, two terms 
having elapsed without Slabber proceeding in 
the matter. 

The Court made no order, but put the plaintiflE 
to terms by ordering him to go to trial next 
term. The question of costs to be considered at 
the trial. 



HILL BB0THBB8 V. REICH. 

Mr. Shell applied for the removal of the 
suit between the parties for trial to the Circuit 
Court for the district of Albert, to be held at 
Burghersdorp on or about the 3rd April next. 

Order granted. 



0OMBRINCKAND0O.V.C0LONL4L f 1896 

GOVERNMENT. \ March 12th. 

Arbitration— Award— Kule of Court. 
In consequence of a resolution of Parlia*aent 
that it was desirable to acquire certain pro- 
perties, including the applicants' premises, 
for railway purposes, the GovemmetU 
decided to expropriate the applicants' pre- 



mises and agreed with them in the widest 
terms to submit to arbitration the compen- 
sation ^^ for any loss or damage of what> 
soever kind caused or to be caused to the 
applicants by reason of the said expropria- 
tion or consequent thereon," and to have 
the award of the arbitrators made a Rule 
of Court, 
Held that, in the absence of partiality or 
misconduct, the Government cannot success- 
fully resist an application to have such 
award made a Rule of Court on the ground 
that the sum is larger thati was contemplated 
by the Covernment or Parliament at the 
time when the expropriation was decided 
upon, more especially as the appUccuits had, 
before such resolution, claimed more than 
the amount ultimately awarded. 



This was an application to make the award 
of the arbitratora in this matter a Role of 
Court in terms of the deed of submission. 

The facts are these : 

The Colonial Government desiring to make 
certain alterations and ext-ensions at the Cape 
Town Railway Station proposed to acquire 
landed property situated in Strand-street 
belonging to the applicants and others, and 
a resolution to that eflEect was passed by both 
Houses of Parliament. On failure of mutual 
agreement as to the terms of the sale the 
matter was referred to arbitrators: Mr. Saner 
being appointed by Combrinck & Co. and 
Captain Jackson by the Government. The 
arbitrators appointed Mr. Steytler as umpire. 

The Deed of Submission contained the follow- 
ing clause : " Whereas the Colonial Govemmeiit 
has decided to expropriate according to law and 
m terms of a resolution of Parliament a certain 

piece of land with house and shops 

being the property of Messrs. Combrinck &, 

Co and at which . . . (they) 

. . . are at present carrying on the buaineas 
of butchers, Sec, and whereas disputes and 

difl^erences have arisen as to the 

amount of compensation to be paid . . . . 
in respect of the said land and premises, and 
for and in respect of any loss or damage of 
any kind whatever caused or to be caused to 
the said Combrinck & Co. by means of the 
said expropriation or consequent thereon." 

The parties to the deed then submitted 
" in the most absolute and irrevocable manner 
the amount of recompense to the aaid 
Combrinck & Co. ... as aforesaid to the 
inal award, arbitration, and determination 



ft 



131 



d the ubitratoTB nckixiedL 2 'fche majority to 
decide in caae of difCerence of opinion. 
Tbe ptrtin also agreed, tliat the award 
Md be made a Rule of Court pleadable 
ii my Hdi in respect of ttie preixii0es. 
Tike ubitetora by a lAajority decision fixed 
the fnrohaae amount at £65,000 COombrinck 
kCalttTing demanded. A77,O00), Oovernment 
to pay owta oi reference. 
Coabiinek k. Go. applied for the award to be 
ude an Order of Court; QoTemment opposed 
the spiplieatum on the §pround that the sum 
tsedbeitaigm exoees of the estimate approved 
bf ParliameQi the echeme could not be proceeded 
with until the matter had been laid before 
Parliament again ; and that a large portion of 
the pmehaae amount so fixed was due to the 
▼ie^^ of the arbitrators as to the loss to the 
fins in eonueotion with their being deprived of 
a certain sidiiig made by the Oovernment and 
Combrinek ic Co., into the premises in Strand- 
street. 

Mr. Bose-Innes, Q.C., and Mr. Graham for 
applieanta. 

Mr. Juta, Q.C., and Mr. Giddy for the 
Govermnentw 
The application was granted. 
The Chief Justice said: Counsel for the 
Goremment has candidly stated at the outset 
thai he is not prepared to impeach the validity 
of tiae award itself, and the question to be 
determined is therefore very much simplified. 
It appears that as far back as the 24th of March, 
1)^4, the General Manager of Railways wrote to 
ipplicants saying that it had become 
to acquire their property in Strand- 
for railway purposes and inquiring as to 
the lowest sum which they were prepared to 
sell tiiem for. On the 28th of March the 
appHcanls said in answer that they would not 
themselves compensated by any sum 
than £77,000. With the knowledge that 
was the sum claimed the Government sub- 
mitted oertain resolutions to Parliament, one of 
vhieh was as follows : ** That it is desirable to 
aequlre for railway purposes such adjoining 
pioperties as are not now held by the Govern- 
ment." The resolution having bvcn adopted, a 
deed of submission was signed by the applicants 
■ad the Government, which is as wide in its 
■eope as snch a submission can be. The deed 
says: ** Whereas the Government has decided to 
«ipn>priate according to law and in terms of a 
res<riution of both Houses of Parliament " the 
pieouses io question, and " disputes and differ- 
CBcci bare arisen between the said parties as to 
the amount of compensation to be paid,'' 
■Bd "whereas disputes and differences have 
to the amount of compensation 



to be paid in respect of any loss 
or damage of any kind whatsoever caused or to 
be caused to Combrinek & Co. by reason of the 
said expropriation or consequent thereon — ^now 
therefore we the said parties do by these 
presents in the most absolute and irrevocable 
manner submit the amount of compensation to 
be paid to Combrinek 8c Co., and by them to be 
accepted as the final award of the arbitrators." 
The deed then proceeds to provide that the 
award of the arbitrators shall be made an order 
of the Supreme Court. The arbitrators have 
awarded the sum of £56,000, being £22,000 
less than the sum which the Government 
all along knew was demanded by the applicants 
and the applicants now ask to have the award 
made a Rule of Court. It is difficult to under- 
stand from the affidavits what the real objection 
to the award really is. The amount is certainly 
very large, but there is no allegation of partiality 
or misconduct on the part of the arbitrators. 
If their award had been for a far lesser sum, 
the applicants would have been bound to abide 
by it, and they could not have refused transfer 
in the face of the deed of submission. The 
Government, through their counsel, say that the 
amount is so large that the sum voted by 
Parliament would be far exceeded if the 
remaining land required should be valued in 
proportion, but these are considerations which 
should have occurred to the Government before 
they became parties to the deed. They consented 
to compensation being awarded not only for the 
value of the land to be expropriated but for all 
consequential damages occasioned by the expro- 
priation. Among such damages was the loss of 
a valuable site for the applicants* butchers* 
business and the removal of the business to a 
less conveniently situated site. These damages 
the arbitrators have taken into consideration, 
and in the absence of any allegation of partiality 
or misconduct, I am of opinion that the appli- 
cation to have the award made a Rule of Court 
must be granted with costs. 

Mr. Justice Upington .- I am clearly of the 
same opinion, and I am somewhat surprised 
that the Government should endeavour to retire 
now from the effect of the arbitration, simply 
because the amount awarded is large. Persons 
may have their own ideas as to what is a large 
amount and what is a small amount, 
but that does not in the slightest degree 
affect my mind. I say ■ that the Government 
legally had no powev to retire from the effect of 
the terms of the deed of submission. 

[Applicants* Attorneys, Messrs. Pairbridge, 
Arderae & Lawton; Respondents' Attorneys, 
Messrs. J. 8c H. Reid & Nephew.] 



132 



•SBKIT V. PSRTORIUS. 



f 1896. 
\ March 12tii. 



Lessor and lessee — Reui — Tacit hypotliec — 
Attachment — Reasonable ground for be- 
lief of tenant's intention to remove goods. 

A hsscr, who recuionahly apprehends that the 
lessee wilt remove movahles from the pre- 
mises leased, is entitled to an order for the 
attachmsHt of such movables pending an 
action to recover the rent due. 

Such apprehension is not unreasonable where 
the rent is long overdue after several appli- 
cations for payment, and ihe lessor has 
reason to hnow thai the lessee had left 
premises previous^ hired by him from 
asiother person without payment of the rent 
du$. 



There was a motion on notice to the present 
respondent (original applicant) that application 
would be made for the disohaige of the order 
obtained by the respondent on the 29th Novem- 
ber, 189i, and why he should not also pay the 
costs of the motion. 

The facts are these : 

On the 80th June, 1898, the respondent and 
applicant executed a written lease for twelve 
months in terms of which Pretorius let to 
Oreeif a certain water erf with the buildings 
thereon in Brit's Town at £2 per mouth payable 
six-monthly* At the expiration of the lease 
Pretorius reduced the rent to d&22 per annum. 

On the 29th Kovember, 1894 (seventeen 
months' rent being then due), Pretorius made 
an ew parte application to the Court for an 
order attaching Greeff's printing plant and 
other printing apparatus, then on the premises 
let, pending the result of an action to recover 
the rent due. The Court granted the order of 
attachment, but gave leave to Oreeff to apply 
to have the order set aside on showing sufficient 
cause. 

On the 1st December the goods were 
attaehed, and on the 28th December the 
amonnt due for rent was paid by Greeff, who 
however declined to pay the costs occasioned 
by the attachment, and he now moved to 
have the order of the 29th November last 
set aside with costs. The main grounds relied 
upon by Greeff were (1) that only twelve 
months' rent was dlie and that Pretorius 
had agreed to give him three or four months' 
time within which to pay the ^4 ; (2) that the 
last five months' reot claimed was not yet due, 
as the rent was only payable six-nM>nthly as 
under the lease for the ftrit twelve months ; fuid 



(ft) that the attachment was wh<^T nniHM^easary 
and under ihe circumstances iliegaL Greoff 
emphatically denied that Pretorius had reason 
to believe that he would remove his priatini; 
plant and printing apparatus from the premiaea 
in order to evade the payment of rent or any 
debt due by him to Pretorius, and he submitted 
that he should not be called upon to pay the 
costs of the attachment. 

In anewer to the above, Pretorius denied that 
he had agreed to give Greeff an extension of 
time within which to pay the first twelve 
months' rent He alleged that he had made 
frequent demands for his roit but without 
success, that he knew that Greeff was 
indebted to one Jaarsveld in the sum of iL\2 or 
thereabouts, also for arrear rent on premises 
previously occupied by Greeff, and that he oen- 
soientiously bMlieved that if he had proceeded 
against Greeff without applying for the attach- 
ment, the printing plant and other printing 
apparatus would have been removed from the 
premises, and that in consequence he would have 
been a loser. Clause V. of the loase was in the 
following terms. 

V. The Lessee and Lessor th-all h'Ove Uf give 
one the other one month's notice in writing for 
terminaiing this oontraet after the expiration of 
the same, 

Mr. Searle, Q,C., for the present applicant; 
The application for the attachment of Greeff's 
printing plant was most unjustifiable, and no 
grrounds were alleged for it in the oriisinal 
petition. See Brett v. Erasmm (3 Ros. GO); 
SpUgel v. EUenbach 4 Co.{\ Juta, 226;. 

If a landlord applies for an order of this kind 
the onus is on him of satisfjring the Court that 
there are reasonable grounds for the application. 
Voet (2. 4, 18, 19.) The order cannot be given 
as a mere matter of course. The principle 
underlying he 8th Rule of Court would apply 
to attachments of this kind. 

If Pretorius gave Greeff an extension of four 
or five months to pay the first twelve months* 
rent, as he and his witnesses say, tiien clearly 
there was no justification for the attachment as 
the last five months' rent was not due, the rent 
being payable every six months. 

Even if the property had been removed from 
the premises the Court could order it to be 
returned. Boa/rd of Exeeutors v. StigUng(fixL<Ak.^ 
1868, p. 26). Under the circumstances Greeff 
should not be ordered to pay the costs of the 
attachment. 

Mr. Shell for the respondent : It is clear tram. 
clause y, of the lease that at its expiration 
there was no tacit relocation— ro0f (19, 2, 10)— 
consequently seventeen months' rent was due 
when the order was applied for. Several appU- 



IBS 



<itMihadbeen iiiad.« ^ot> ^lie rent but in vain. 

Oviiw is hur leas fm^oimkble to m, landlord than 

tk» b^Ui \miw «nd An order aitachiDg the 

tMBt'ifooda iabis only security, because if the 

^adtue removed witl&out. & preTioiu order of 

OoQt the landlord ib irritlion^ remedy. Warren 

^.CkmemU (1 Bbeii, 287> Ms J^riee (3 Juta. 139). 

Ii Bteri 0f BwecHtar9 ▼. Sti^Unff, the goode 

vet ordered to be returned to the premisee 

tNcaoM they were already in omstodia legit when 

they vere renoved. 

Ihfsc 'ia no nmilarity between the arreet of 

apeneaunder the 8tb Rule of Court and an 

attaduaent oi goods as in the present. 

ll ift Bobmitied that Pretorius had ample 
iMtificaiioii for applying for the order of 
•ttai^mcnt^ 
The aipipUeatioin was refused with coste. 
The Chief Justice said: The lessor has a 
tacit hypothec for his rent upon the tenant's 
movables so long as they are upon the 
preniises leased. Upon the removal of the 
movables the hypothec ceases unless there 
had been a preyions order of attachment, in 
which case the Court would order the lessee 
to return the goods to the premises for the 
porpose of giving eifect to the attachment 
Smeh being tiie law the Court has always aided 
the vigiUuit creditor, and has never required 
the very strictest proof that the tenant intended 
to remove the goods. It is sufiicient if the 
Ifiwi has reasonable grounds for apprehending 
tfasit the tenant will remove the goods. In 
tifee pr e s en t case it is impossible to say that 
tfafcre were no reasonable grounds for the re- 
■pondenVs belief. His grounds are that seven- 
months' rent is due, that several appli- 
for payment have been made without 
and that ihe applicant had left pre- 
previously hired by him -from another 
leaving the rent unpaid. Instead of 
a summons for the rent the respondent 
obtained the order of attachment, and as there 
was reasonable groond for the original appli- 
csition, the present application to set aside 
the erder must be refused with costs. 
Mr. Justice Upington concurred. 
[Applicant's Attorneys, Messrs. Van Zyl Sc 
Boiarinne; Bespoodent'e Attorney, Paul de 
ViUieral 



SUPR EME COURT. 



[Before Sir J. H. db Villdbbs (Chief Justice), 
Mr. Justice Buohakan, and Mr. Justice 
Upihoton, K.C.M.G.] 



LAWBBNCE V. LAWRICNClt. {Maro^^ftth. 

This was an action for restitution of conjugal 
rights, failing which for divorce, instituted by 
Mr. Harold Boberts Lawrence against his wife, 
Mrff. Emmeline Lawrence (bom Roden). 

The defendant was sued by edict, and the in- 
tendit alleged that the parties were married at 
Usk, in the county of Monmouth, England, on 
8th December, 1875. 

That there was no issue of the marriage. 

That on the 7th December, 1876, before the 
solemnisation of the marriage and in considera- 
tion of the marriage, certain deeds or indentures 
were duly entered into by the plaiutiff, the de- 
fendant, and others for the purpose of marriage 
seHlements. 

That thereafter in or about the year 1878 the 
defendant wrongfully, unlawfully, and mali- 
ciously deserted the plaintiff, and neglected and 
refused, and still neglects and refustH to return 
to the plaintiff or to restore to him his conjugal 
rights. 

The plaintiff claimed ; 

ia) An order for the restitution of his con- 
jugal rights, or failing compliance with such 
oJder: 

{h) A divorce. 

ic) A forfeiture by the defendant of all 
benefits accruiog to her from the plaiutiff ))y the 
deeds of settlement above-mentioned. 

{d) Alternative relief and costs. 

For a special plea and before plendiug to the 
merits of the intendit, the defendant sayB as 
follows : 

Hhe denies that the plaintiff is domiciled in 
this colony. She herself is domiciled in Eng- 
land, and has never been within this colony. 

Wherefore she submits that this Honourable 
Court has no jurisdiction in the present suit, and 
prays that the plaintiff's application may be 
dismissed with costs. 

For a plea the defendant admitte<l the formal 
allegations in the intendit, and aliegeil that at 
divers times between the date of her marriage 
and the year 1878, the plaintiff ill-truated and 
behaved with great cruelty to her, and was of 
intemperate habits, and it became dangerous 
and unsuppor^able for the defendant and in- 
jurious to her health to continue to reside with 
him. 



134 



That she therefore, in the year 1878, left the 
plaintiff and has since resided apart from him. 

That since the year 1878 the plaintiff has not 
contributed to her support, nor has he, until 
the commencement of these proceedings, asked 
her to return and live with him as man and 
wife. 

She alleged that it would be dangerous for 
her, owing to her state of health, to undertake a 
sea Toyage from England to the Colony, and 
she therefore prayed that the plaintiff's claim 
might be dismissed with costs. 

Issue was joined on the replication. 

Mr. Watermeyer appeared for the plaintiff. 

Mr. Rose-Innes, Q.C., and Mr. Benjamin for 
the defendant. 

Harold Roberts Lawrence, the plaintiff, de- 
posed that he was a mining engineer, at present 
residing in Cape Town. He was employed by the 
firm of Coghlan Sl Cherry. Had been with them 
since the 6th Deember last. Was married to the 
respondent on the 8th December, 1875. Was 
residing at Mostyn, between Rhyl and Chester. 
Was at the time under notice to leave his 
employers, the Mostyn Coal and Iron Company, 
in consequence of the works being curtailed. 
His marriage was not postponed, but Colonel 
Roden, his intended wife's father, knew 
that he was on the point of leaving 
Rhyl. After the marriage they then 
went to live at Llangibby Castle, the 
residence of his father, and took over the 
sub-management of his father's property, which 
was extremely large. Afterwards, in 1877, his 
father bought for him a metal- broking business 
in Chester. He continued in that business nine 
years. They moved to Uplands in July or 
August of 1877. His wife raised no objection to 
going to Uplands. His wife did not 
bring any money on her marriage or after- 
wards, but there were settlements on 
l)oth sides. His father gave him the house 
at Uplands for them to reside in. Witness 
paid all the household expenses. Colonel Roden 
never in his life gave him any money. 
He kept three horses, and there were two ser- 
vants. Did not think he was ever drunk in the 
presence of his wife. Never in his life struck 
her. Knew Major Carnegie. A Volunteer 
dinner was given in February, 1878. Witness 
was twenty-five years of age at that time, and 
was a subaltern in a Volunteer regiment com- 
manded by Colonel Roden. Witness went to 
the dinner late, but was not present at the 
officers' meeting prior to the dinner. He 
admitted that he, like a good many others at 
that dinner, "got fresh." It was quite untrue 
that he resigned from the regiment because of 
has conduct at that dinner, Sent his papers in 



in August, 1878, because his wife had left him and 
he had quarrelled with Colonel Roden. Did not 
at that dinner draw his sword and attempt to stab 
an officer named White. Was moat friendly with 
White ; always on excellent terms with him. He 
was not given to gambling and horse-racing after 
his marriage, but before his marriage he rode to 
hounds and in steeplechases. Was well known 
as a steeplechase rider. Had ridden 
five winners in two days. His wife 
was always delicate. At certain periods 
she was very poorly. At the time his 
wife left the house he had not lived with her 
as his wife for about two months. On the 
occasion when his wife struck him with a stick 
he had been riding out to Abergavenny, and 
owing to the frozen state of the ground he did 
not arrive back at the house until about 10.30. 
He had not been drinking, and his wife came 
down to the dining-room with a stick and struck 
him across the head. He put his wife out into 
the hall, and afterwards he found his wife lyin^ 
in a faint in the drawing-room. The foUowini^ 
morning she asked his forgiveness, said she had 
been suffering from neuralgia, and that she 
was not responsible for her actions. He fetched 
the doctor for her that morning, and he (wit- 
ness) went to Newport and arranged that hie 
wife should go to Newport to have a tooth 
drawn. Through all these incidents just subse- 
quent to the scene he had mentioned he and his 
wife were on good terms, and after the tooth- 
drawing his wife left according to arrangement 
for her father's house. Had no idea that 
she intended to leave him for good. 
She was at Llangibby Castle for a 
little time after that and he visited her there. 
They had no quarrels at that stage but were on 
good terms. Then his wife left Llangibby 
Castle and ho had never spoken to her since. 
Afterwards broke up his establishment at Up- 
lands and finally left there on the 10th Novem- 
ber, 1887. Belonged to the Newport and County, 
the Monmouthshire and Leicestershire County 
Clubs. After he left Colonel Roden 's regiment 
in 1878 he served in the Gloucestershire Hussars. 
He left England for South Africa in 1887, and 
went to the Transvaal, and after living there up 
to 1893, when his father died, he returned to 
England. He then attempted to effect a recon- 
ciliation. Colonel Roden was assassinated in 
Corsica in 1887, and he wrote to his wife 
offering to go to Corsica for her. She refuned. 
All his correspondence he lost in 1888. Had 
worked for various people in England and 
South Africa, and had received testimonials as 
to good character. 

Cross-examined : Resided with his wife from 
1878 to 1887, Came to South Africa then with 



r 



135 



ti» kin of getting employmeiit as a mining 
engineer. Filled irariouB posts in the Transvaal. 
He went to Bngl&nd in 1893, and since 
hii retnrn had not been able to aoquire 
ptopertj pending the action. He would not 
tdmltthatit was on account of the money 
diffieolty that he was brinsing the action. He 
wanted to get his money free under the mar- 
riage eettlements. Sis ^wife had been fairly 
kind to him, and ofEered once to lend him £3,600. 
He had ceded half of his rights to his brother. 
His memory was not at fault when he said that 
be was not of drunken habite when he lived with 
his wife, or that he ever ill-used her. The 
evidence of Major Carnegie, taken on oommis- 
BOD, tiiat he behaved disgracefully at the 
Vdimteer <Unner waa not correct. 

In reply to the Chief Jui^tice, witness said 

that the evidence taken on commission in Wales 

bad been raked up by a little solicitor named 

Witkins. It waa perfectly untrue that his be- 

baTiour tohia wife was anything like what was 

stated in that evidence. 

CrosB-examination continued: His wife had 
given nntme evidence on oath as to his alleged 
ill-treatment, and so had the servants who had 
given similar evidence. 

Be-examined : An incident occurred in 1887 
in which he was charged with drunkenness, und 
LcKd Fitahardinge had been "on the carpet" 
over it, and would not let him go to the Court. 
Had he answered to the charge there would have 
been no conviction. 

Toluminous evidence, taken on commission on 
behalf of the respondent in Ensland, was read, 
the burden of it being that the respondent 
woold not go back to her husband in consequence 
«rf his bad conduct, ill-treatment, and in- 
temperance. 
After aigument. 

The Ooort granted absolution from the in- 
stance with costs. 

The Chief Justice said : This is an action by 
the husband to compel the wife to return to 
him and to cohabit with him. An action of 
this kind cannot be successfully brought unless 
the plaintiff proves that the desertion was not 
ooly wilful but also malicious, and it lies upon 
the plaintiff, therefore, to prove that his wife 
has maliciously deserted him. Now, in my 
opinion there can be no malice if the husband 
has giren cause for desertion. We have a case 
here of a delicate, nervous wife, towards whom 
the plaintiff on several occasions has shown 
considerable unkindness, to say the least of it. 
Aooording to her evidence he was frequently in- 
toxicated, and while in that condition went so 
te as to aseanlt her. In this evidence she is 
eorroborated by the groom, who witnessed one of 



the scenes, and a maid-servant who was also 
present. Well, the plaintiff positively denies all 
these statements, but I cannot bring myself to 
think that this lady has concocted a falsehood 
like this, and that she has been in conspiracy 
with the groom and maid-servant in oider to 
bring this false charge against the plaintiff ; 
especially when I take into consideration the 
fact that one of the witnesses— who was ad- 
mitted to be an impartial and respectable wit- 
ness—I mean Major Carnegie, swears positively 
that on two occasions he was a witness to acts 
of drunkennees during the time that 
the plaintiff was still living with his wife. If 
the plaintiff had candidly admitted what was 
stated by Major Carnegie to be only partly true one 
might attach more weight to his evidence given 
with regard to the other acts alleged, but he posi- 
tively denies everything that Major Carnegie 
says. After giving the matter my best consi- 
deration I can only come to the conclusion that 
there is proof of ill-treatment in the year 1878 
which justified the respondent then in refusing 
to live with her husband. My only difficulty 
has been, whether the acts of unkindness in the 
year 1878 are sufficient justification to the de- 
fendant to refuse now, in the year 1895, to re- 
turn and live with her husband. Now, if the 
plaintiff had candidly admitted that the acts of 
unkindness did take place in 1878, and stated 
that since that time he has become a reformed 
character and it was his intention to deal 
kindly with his wife in the future, something 
might have been said for him, but that is not 
the position he takes at all ; he denies positively 
everything put forward in the evidence for 
the respondent as regards his conduct. Then 
again it appears now that the evidence was 
tendered to the commissioner of acts of 
drunkenness on the plaintiff's part after the 
parties had ceased to live together up to as late 
as the year 1893 : and that that evidence was 
objected to by the counsel for the plaintiff, and 
being bo objected to was rejected by the com- 
missioner. So it does not lie now in the plaintiff 
to say that he can prove ho is a reformed 
character, because he refused to allow evidence 
to be given by ^he respondent as to his character 
since 1878. Under these circumstances I am 
afraid there is no course open to the Court but 
to grant absolution from the Instance with 
costs. 

Mr. Justice Upington : I am also of the same 
opinion. I do not think that the plaintiff is 
what has been described as a confirmed 
drunkard ; he does not present that appearance 
to me at all. But I think he is one of those 
flighty men who when he has taken a little 
liquor is rather free in the use of his hands ; 



136 



and if he were in a poeition to show me now 
that he had given up that bad habit and had 
quieted and sobered down and was a different 
sort of man from what he had been proved to 
be in 1878, 1 think there would have been great 
weight in Mr. Watermeyer's argument. 

LPlaintifl's Attorney, D. Tennant, jun. ; De- 
fendant's Attorneys, Messrs. Van Zyl Sc Buis- 
sinn^.] 



HOPE V. ILLARIO. 



( 1895. 
1 March L3th. 

Slander — Publication — Admission . 
The Court, o/i appeal, re/tued to reverse a 
Magistrate's judgment awarding damages 
in an action for slander, where although no 
evidence of puhHcation had been given, still 
there wa>s a clear admission in a letter of 
apology signed by the defendant that she 
had used the words complained of 

This was an appeal from the decision of the 
Acting Resident Magistrate of Cape Town in 
an action in which the present respondent, 
plaintiff in the Court below, sued the appellant, 
defendant, for £10 damages for slander. 

The summons alleged that the defendant did 
on or about the 25th day of December, 1894, and 
at Cape Town, falsely and maliciously speak 
and publish of and concerning the plaintiff, in 
the presence ana hearing of Catherine Kune. 
Mrs. Kirton, and divers other persons, the false, 
scandalous, and defamatory words following, 
that is to say, " you are a w ." 

The defendant in her plea denied the debt, 
pleaded the general issue, and claimed in re- 
convention £20 damages for slander. 

The evidence went to show that after the 
letter of demand had been sent the defendant 
called at the office of the plaintiff's agent, and 
signed an apology, for the publication of which 
she undertook to pay, it being agreed that no 
further steps would be taken if the defendant 
paid the cost of advertising the apology. This 
she neglected to do, and a summons was issued. 
When the above evidence had been given, the 
plaintiff's case was closed, no evidence having 
been produced as to the publication of the 
slander. 

The defendant's agent then applied for a dis- 
missal of the plaintiff's claim on the grounds 
that as she had accepted an apology she could 
not recover damages. 

The Court refused the application. The de- 
fendant then gave evidence. She practically 
admitted that she used the words complained of, 
but not until the plaintiff had used similar lan- 
guage towards her. The defendant further 



alleged that rather than go to court she gave an 
apology, and undertook to have it advertised in 
a paper which charged 12s. for the advertise- 
ment. The plaintiff, however, insisted upon 
having the apology inserted in a newspaper 
which charged 15s. for the advertiaement^ and 
in consequence it was not published in either of 
the papers. 

At the conclusion of the defendant's evidence 
the counter claim was withdrawn. 

Judgment was g^ven for the plaintiff for £1 
with costs. 

The defendant now appealed. 

Mr. Graham was heard in support of the 
appeal and contended that the Magistrate 
should have dismissed the case as no proof 
of publication was g^ven. 

The respondent was not represented. 

The Court dismissed the appeal. 

The Chief Justice said : The evidence in this 
case is very meagre, but it is not so important a 
matter that it would be f^ir on either paitj to 
put them to the expense of bringing fresh 
evidence before the Magistrate's Court. The 
evidence before the Magistrate was that there 
had been an apology in which the defendant 
admitted in distinct terms that on Ohristmaa 
Day she uttered slanderous words concerning 
the plaintiff. Now the only words that could 
have been referred to appeared in the summons, 
and in the summons it is stated that the words 
were uttered in the hearing and presence of 
other persons. Mr. Graham says that the 
summons was issued after the apology, but at 
any rate the apology was sen! after the letter 
of demand, and we may fairly presume that 
that letter of demand was in terms of the sum- 
mons, and the letter of demand having been 
sent, the defendant sends an apology, in which 
there is a clear admission of having uttered the 
slanderous words complained of. It would have 
been much better if the Magistrate had taken 
some additional evidence, but still I think the 
defendant might well have left the matter as it 
was decided by the Magistrate. The appeal 
must be dismissed. 

[Appellant's Attorney, Paul de Villiera.] 



MOCAHY T. WILLIAMS. { M«^?^13th. 

Writ of arrent— 8fh Rale of Court. 

Writ of arrest refused where no a/fplication 
had been made to the Registrar under the 
Sth Rule of Court, 



This was an application for a writ of arrest 
against the defendant, who was alleged to be in- 
debted to the plaintiff in the sum of £16, 



is^i 



-^v 



and who was also alleged to be leaving for 
Bnglandthifl afternoon by the mail steamer 
without having paid the claim. 

A Bommona was ifssued out of the Magistrate's 
Court of Cape Town this afternoon, but there 
was no evidence that it had been served upon 
the defendant. 

Mr. McLaohlan was heard in support of the 
application, and relied on the eighth rule of 
Court 

The Court refused the application. 

The Chief Justice said : It may be very hard 
on creditors that debtors should leave the coun- 
try without paying their debts, but of course if 
they give credit to people they must bear the 
consequences. Under certain circumstances 
debtors may be arrested, and where there is an 
Act of Parliament or a rule of Court authoris- 
ing the arrest the Court will grant an order to 
give effect to it; but in the absence of any 
authority the Court will not grant an order 
arresting any person, because the liberty of the 
subject is more sacred even than the right of a 
creditor to recover his debt. In the present case, 
if Uie plaintiff has any claim at all the proper 
coone is to obtain his writ from the Registrar in 
the ordinary way. If he has already issued 
his summons in the Magistrate's Court 
it is unfortunate, but he may be able to withdraw 
that and then get his writ frova. the Registrar of 
this Court The application should not have 
been made in its present form, and will there- 
fore be dismissed. 

[Petitioner's Attorney, C. J. MacColla.] 



J. and H., that the Magistrate would have 
been justified y owing to want of jurisdiction^ 
in granting absolution from the instance on 
the claim for ejectment. 



i 



BBOIMA V. JOHN BTBVBN ADAMS. 

Mr. Oiddy applied for the removal of this 
case to the circuit at Worcester. 
The order was granted. 

HKABNB V. JACKSON. ) Mareh W 

Magistrate's jarisdiction — Act 20 of 1856, 
section 10 — Kjcctraent — Agricultural 
Lands Act, 1882— Sab-Lease. 

J, the wife, of a licensee under Act 37 of 1882, 
(Kting under a power of attorney from her 
hndfondf sub-let the land leased to H., but 
before the expiration of the sub-lease she 
entered upon the property and resumed 
possession. 

H. sued J. in the Magistrate's Court for 
fjectmeni, and judgment was given in favour 
of J. 

Held on appeal, without deciding as to the 
validity of the sub^Uase entered into between 
T 



This was an appeal from a decision of the 
Resident Magistrate of Queen's Town in an 
action in which the present appellant, plaintiff 
in the Court below, sued the respondent, defen- 
dant, for ejectment from the farm Middle- 
field. 

The summons alleged that the defendant 
^Isabella KismalJackson), acting under a power 
of attorney from her husband, Alexander Forbes 
Jackson, did on the 2^h day of April, 1893, by 
deed demise and lease unto the plaintiff the 
farm Middlefield (with the buildings and 
erections thereon, save one room in the said deed 
referred to) for the term of three years from 
16th day of May, 1898, and at a rental of £40 
per annum. (Copy of the deed was annexed.) 
That in the montii of January, 1894, and on or 
about the first day of September last, the 
defendant by herself and with certain members 
of her family wrongfully and unlawfully entered 
upon the said farm Middlefield and into the 
homestead thereof and although requested she 
has refused since the let September last to quit 
the said farm and homestead, that she illegally 
interferes in the operations of the said farm, 
causes annoyances and disturbances, has burned 
the grass and a hedge of the said leased land, 
and has abused and assaulted the plaintiff's 
workmen and caretakers, and other illegal acts 
she has committed. 

Wherefore the plaintiff prays the judgment of 
the Court against the defendant with costs, and 
also prays that she be ordered forthwith to quit 
the said farm Middlefield, and failing 
which that she be summarily ejected. 

The defendant filed the following pleas and 
claim in reconvention : 

1. On the 29th April, 1898, the date of the 
alleged lease to plaintiff, the said farm Middle* 
field was held by Alexander Forbes Jackson, 
since deceased, under licence from the Commis- 
sioner of Crown Lands, in terms of the 
Agricultural Lands Act of 1882, dated 9th 
December, 1890, upon condition, inter aUa^ that 
the licences should personally reside on the land 
and that the interest of the licencee in the land 
should not be assignable except under the 
provisions of the said Act. The said Alexander 
Forbes Jackson did not lease or assign his 
interest to the plaintiff under any provision of 
the said Act, and the defendant had no lawful 
power or authority to lease or assign the said 
land or the interest of the lloenoac therein. 



188 



^, The defendant did enter into an agree- 
ment for a lease with the plaintiff on the terms 
set forth in the document annexed to plaintiff's 
summons, which contained an undertaking 
among other provisions that plaintiff would 
keep the farmhouse, huildings, walls, fences, 
hedges, dams and water furrow in good order 
and condition, that he would maintain the 
garden and carefully preserve all ornamental 
and fruit trees, bushes and shrubs, and not cut 
or permit to be cut or destroyed any such trees, 
or the mimosa trees or bushes on the farm and 
especially those near the houses, and would not 
without consent assign, underlet or part with 
the possession of the said farm or any part 
thereof, such agreement being made at a time 
when the licencee had permission to be tem- 
porarily absent from said land and when 
defendant was unable through illness to manage 
the same or transact business. But the plaintiff 
disregarded and broke all the said conditions 
and caused or permitted great damage to the 
farmhouse, buildings, garden and trees, 
neglected the water furrow, removed a large 
portion of the fences and sublet or parted with 
the possession of the farm or part thereof, there- 
by endangering the licencee. 

3. The said Alexander Forbes Jackson there- 
after on or about the 22nd day of December, 
1898, resumed possession of the said farm and 
buildings and determined the said agreement. 

4. The defendant is the executrix dative of 
the estate of the late A. F. Jackson and as such 
is in lawful possession of the said farm. 

Wherefore the defendant prays for judgment 
with costs 
Claim in reconvention. 

The plaintiff is indebted to the defendant in 
the sum of £20, being the balance of the price 
of certain wheat, mealies, and grain bags of 
the defendant sold and delivered to the plaintiff 
between the 17th February and the 29th April, 
189S, according to the account hereunto annexed, 
which sum although duly requested thereto 
ihe plaintiff refuses to pay. 

Wherefore the defendant prays judgment 
for the same with costs. 

[The account referred to in the daim in re- 
convention claimed the sum of £39 12s, 7d. 
for eighty -three bags of mealies, three bags 
of wheat and forty grain bags, less £17 allowed 
for grazing, and £2 I2s. 7d. abandoned, to 
bring the amount claimed, £20, within the 
Magistrate's jurisdiction.] 

The plaintiff excepted to the defendant's 
pleas and said that the same involved the 
question of rights in future and title to land, 
the right of occupation to plaint^ exceeding 



the sum of £40 and eotuegvently beyond the 
jurisdiction of the Covrty and he prayed that 
they might be dismissed. 

The plaintiff further excepted to the defen- 
dant's claim in re -convention and said that 
the total account was disputed and credit 
not admitted and was beyond the jurisdiction 
of the Court. 

The Magistrate overruled these exceptions 
and gave judgment for the defendant 
in convention with costs, and for the 
plaintiff in reconvention for £18 Ss. 7d. with 
costs, and as to the first item in the defendant's 
account absolution from the instance. The 
following were the Magistrate's reasons and 
statement of facts as found by him : 

1. Plaintiff is a farmer and the defendant 
iM the widow and executrix dative of the late 
Alexander Jackson, who in his lifetime was 
the licencee under the provisiouB of Act 37 of 
1882 of Lot A, Kei Bridge farm, district of 
Queen's Town. 

2. Alexander Jackfion died on 14th February, 
1894, and defendant was appointed executrix 
dative to the estate on 29th May, 1894. 

3. The licence referred to is for five yeara, 
commencing from 1st January, 1891, and 
terminating on Slst December, 1895. 

4. Defendant is in possession of the premisea 
and land in question by virtue of her appoint- 
ment as executrix dative of her late husband's 
estate. 

5. The late Alexander Jackson applied to 
Government for permission to absent himaelf 
from the land referred to owing to severe indis- 
position. This was agreed to on 8th March, 1893, 
and on 26th December of the same year the 
Civil Commissioner wrote to Bell, Jaokaoa's 
attorney, stating that the period for which 
Qovemment permitted his client to absent 
himself from the land, o#ing to illness, had 
expired. This goes to show that the arrange- 
ment was of a temporary nature only. 

6. On the 29th April, 1893, defendant acting 
under a general power of attorney from the 
licencee leased the allotment in question to 
plaintiff with the buildings thereon, with the 
exception of one room, for three years from 16th 
May, 1893. One condition of the lease contract 
provides that "the lessee shall not without the 
consent in writing of the lessor or his agent 
assign, underlet or part with the possession of 
the said farm or any part thereof." 

7. Section 14 of Act 37 of 1882, the Act under 
which Jackson holds the land from Government, 
provides that "the interest in land held on 
licence shall not during the currency of such 
Ucenoe be assignable except under the provisions 
of the Act." These proyisions will be found in 



139 



■ections 12 and 13, and were not complied with 
when the contract between Jackson and Heams 
was entered into. I am of opinion therefore 
that this contract was void ab initiv^ and that 
the aHotment in qnestion is an aseet in the 
estate of the late Alexander Jackson and should 
be treated as such by the executrix dative. 

8. I find moreover that Heams has failed 
to obeerre the conditions of the lease itself, 
notably when he placed Marx and De Bruyn 
in poflsession of the premises and lands, and 
allowed trees growing on the land to be felled 
without the consent of the licencee or his agent ; 
BO that even if the licence contract is good 
Heams himself has broken it. 

9. Under these circumstances the application 
for ejectment of defendant from the premises 
was refused with costs. As to the claim in 
reconvention I find the following facts proved : 

1. When plaintiff (Mrs. Jackson) left the 
allotment in April or Hay, 1899. there were 
some mealies growing on the land. These the 
defendant Heams agreed to reap, sell and pay 
plaintiff for according to market rates, less 6d. 
per bag for harvesting. 

2. Plaintiff is unable to say what mealies 
were reaped, but Heams admits that there were 
seventy-three bags and two bags of cobs and 
that he sold the mealies to the O.M.R. at 
Staalklip at lOs. per bag. I think 10s. per 
bsg would fairly represent the market price 
of mealies at that time. 

8. Plaintiff would therefore be entitled to 
^B86 IQb. Od., being for seventy-three bags of 
mealies at IQb. plus iSl 8s. 4d. for forty grain 
bags at 7d. and 6s. for the two bags of cobs, 
in all £87 18s. 4d. Against this sum should 
be eet off carriage of mealies to Staalklip, 
iay 9d. per bag, and for reaping 6d. per bag, 
mmely 42 14s. WL, and for grasing, as admitted 
br plaintiff. £17. 

1 1 therefore gave judgment in favour of 
plaintiff (Jackson) for £18 8s. 7d. with costs. 
The first item in the account, namely three bags 
of wheat (676 lb. at 9b. 6d.), T was uncertain 
abontand therefore gave absolution from the 
uitaiiee in respect of this item. 

From this judgment the plaintiff now 
Appealed. 

Mr. Hearle, Q.O., was heard in support of the 
•PpeaL 

Mr. Boee-Innes, Q.O., for the respondent 

The Court dismissed the appeal. 

The Chief Justice said: It is quite clear that 
Jwclafan in convention ought not to have been 
jnmght in the Magistrate's Court* because the 
••gistrate had no jurisdiction. The 10th 
■••tton of the Magistrate's Court Act does not 
•PPfy to a caoe of ^ectl^e^t lender % tem^ncy of 



this kind, and therefore, without going further 
into the merits of this part of the case, it is 
plain that the Magistrate would have been 
quite justified in giving absolution from the 
instance on the claim in convention, and if his 
judgment means anything else then this Court 
will alter it to absolution from the instance, 
leaving it afterwards to the plaintiff if so advised 
to have the question as to the validity of the 
sub-lease decided in one of the higher Courts, 
but I do not think that this Court should at the, 
present stage be asked to say that the plaintiff 
has a valid claim. With regard to the claim in 
reconvention I have listened attentively to the 
evidence, and I do not know that any good 
purpose will be served by my reading it all over 
again, because the obscurity which undoubtedly 
exists will not be removed by a fresh perusal of 
the evidence. The Magistrate seems to have 
given the matter the most careful consideration 
and to have gone very fully into the accounts, 
and he has given the plaintiff the full benefit 
of any credits to which he is entitled. Under 
these circumstances, I am of opinion that the 
appeal must be dismissed with costs. 

Mr. Justice Upington concurred. 

'Appellant's Attorneys, Messrs. Van Zyl k, 
Buissinn^; Respondent's Attorneys, Messrs. 
Fairbridge, Ardeme k Lawton. I 



SUPREME COURT. 

(IN CHAMBERS.) 

[Before Sir J. H. db Yillibbs, K.C.M.a. (Chief 

Justioe.J 



BBOINA y. EHBLINO AKD f 1896. 

piBTBBflB. \ Mar. 19th. 

Mr. 4ld<^7 applied for an order removing the 
crimlnOT actions against these prisoners, on the 
charge of housebreaking and theft, to the Circuit 
Court at Worcester. 

The order was g^nted. 



BBGINA y. KIIBLINO. 

Mr. Oiddy applied for a similar order in this 
case. 
The order was granted. 



GENERAL MOTIONS. 

THB PETITION OP 8DMUND H. BHABP. 

Mr. Buchanan moved for an order authorising 
the Registrar of Deeds to issue a copy of certain 



140 



mortgage bond passed in favour of petitioner by 
Herbert Sharp, hypothecating certain land and 
premiscB known as Na 8, Ohnrch-street, Cape 
Town, the original bond having been lost or mis- 
laid. 

A rule niii was granted calling upon all persons 
interested to show cause on the 12th ^pril why 
the application should not be g^nted as prayed. 
The rule to be Dublished once in the 
** Government Gazette." Failing cause shown, 
the Registrar of Deeds to issue a copy of the 
bond. 



COOK AND ANOTHBB V. COLONIAL QOVEBNMENT. 

Mr. Webber moved for leave to plaintiffs to 
appeal to Her Majesty the Queen in her Privy 
Council from the judgment of this Court, pro- 
nounced on the 11th instant, in the suit between 
the imrties. 

The order was granted. 

GBUNDLINQ'S BXBCUTOB V. LATBOAN AND 

OTHKB& 

Mr. Innes, Q.C., applied for the issue of an order 
for the personal attachment of certain of the said 
defendants for contempt of Court in failing to 
carry out sub-divisional transfer of the farms 
Buffelsjaohtsfontein and Waterkloof in terms of 
a judgment of this Court, dated 2nd November 
last. 

Mr. Buchanan for the respondents. 

The Court granted the respondents time to 
comply with its order of 2nd November up to 
Slst May, respondents to i>ay the costs. 

IK THE INBOLVSNT BBTATB OF JAN A. 
HAABHOFF. 

Mr. Benjamin applied for an order requiring 
William P. Cressey and others to proceed with 
the objections raised by them to the confirma- 
tion of the liquidation and contribution 
account framed by the sole trustee of the said 
estate. 

Mr. Innes, Q.C„ appeared for the respondent. 

An order was granted calling upon the respon- 
dents to proceed by the 12th April, the question 
of the costs of the application to stand over. 



8TBTD0H V. STBTDOH'S TBUSTBS. 

This was an application by the defendant for 
an order that plaintiff do pay the costs incurred 
by the defendant in certain application for an 
interdict to restrain the sale of an asset in the 
insolvent estate of the said Strydom in the 
Oudtshoom Circuit Court, and also the costs in 
the cause. 

Mr. Innes, Q.C., for the f^ppellf^nt, 

Jbe orcler was grp^ted, 



8TBYN*S TBU8TEE Y. GOUB. 

Mr. Buchanan applied for an order for the 
removal of the suit between the parties from 
this Court for trial at the Burghersdorp Circuit 
Court, to be held on or about the 6th April next. 

The order was granted. 



FOBBATI V. KLEYNHAN& 

Mr. Benjamin moved for authority to the 
messenger of the Court of Resident Magistrate 
for Albert to attach so much of the inheritance 
due to the defendant's wife, to whom defendant 
ifi married with community of property, out of 
Grobler*s estate, as will satisfy the amount of 
plaintiff's judgment obtained against the said 
defendant. 

The order was granted 



BEOINA v. ZWABT, olUu IZLANT f 1895. 

AND JANTJBS. ) March 19th. 

Special Justice of the Peace — Jurisdiction — 
Masters and Servants Act — Compensation. 

A Special Justice of the Peace has no juris- 
diction to order compensation wider Act 
lb of 1856^ section 13. 



These cases came on review from the Special 
Justice of the Peace at Brandvlei, Calvinia. 

The first accused was charged with contra- 
vening Act 18 of 1878, section 4(1), in having 
negligently lost certain seven sheep the 
property of his master. The accused was found 
guilty and sentenced by the S.J.P. to deliver 
to his master within a month a donkey of the 
value of the sheep lost. The second named 
accused, Jantjes, was also charged with con- 
travening Act 18 of 1878, section 4 (1) in 
having by wilful breach of duty lost sixteen 
sheep, the property of his master. He was 
also found guilty and sentenced to deliver 
to his master within a week sixteen sheep as 
compensation for the sheep which he had lost. 

Mr. Giddy for the Crown: ^ Special J.P. 
has no jurisdiction to order compensation 
under the Masters and Servants Act, and 
consequently the convictions cannot be sup- 
ported. 

The Chief Justice said: There appear, to 
me to be two objections to these convic- 
tions; firstly, that a Special Justice of the 
Peace had no jurisdiction to order compen- 
sation for the value of sheep or other 
stock lost, and even if he had jurisdiction, there 
is the further objection that the form of the sen- 
tence is too vague to be carried out. A donkey 
of the value of the lost sheep was to be given, 



r 



141 



but vho was to be the jndi^ of the yalue of the 
donkey ? Would it be the niftster to whom the 
ptTment wme to b« made, or the prisoner 
bimielf ; or was the Mag^istmte to nit again to 
dflddc judicially as to tlie -^ralue of the donkey 7 
Both objectioDs appear fatal, and the con- 
netions must be qnaaliecL 



supR f:m e court. 

(IN CHAM BBRS.) 



[Before Mr. JuBtice Upinoton.1 



GSNERAL MOTIONS. 



PAumr AND cyrHEBS v. r,rPFKBTf 1895. 

(March 26th. 



of Port Blisabeth, secretary of the Aegis 
Assurance and Trust Company, on behalf of the 
defendant Lippert. 

Order granted, Mr. Shippard to act as com- 
missioner. 



Mr. Seark moved for a oommission to take the 
cridMoeinGape Town of Riohard Shaw Smith, 



IN THE INSOLVENT ESTATE OF HANA88EH 

WOOLF. 

Mr. Maskew moved for authority to the 
Master to call a fresh meeting for the purpose 
of electing a trustee. 

Order granted. 



In re the aliwal north boasd of 

EZBCUTOBS, IN LIQUIDATION. 

Mr. Molteno presented the second report of 
the liquidators of the Aliwal North Board of 
Bzecutors Trust and Agency Company 
(Limited). 

The Court ordered the report to He open for 
inspection at the office of the Master of the 
Supreme Court and of the Resident Magistrate 
of Aliwal North ; notice to be given in the 
" Northern Post." 




biGKSt OF CASi:s 



PAGE 



Ariritmion — Award Rule of Court. 

In consequence of a resolution of 

Parliament that it was desirable to 

Qcqture certain properties^ including 

ikt QppliccLnts' premises ^ for railway 

purposes^ the Cfovemment decided to 

trpropriate the applicatits' premises 

and agreed tnith them in tie widest 

terms to submit to arbitration the 

con^nscUion " for any loss or 

damage of whatsoever kind caused 

or to be eaused to the applicants by 

reaaon of the said expropriation or 

coasequeut thereon/' and to have the 

atpord of the arbitrators made a Rule 

of Court, 

Hell that, in the absence of porti- 
ality or misconduct, the Government 
cannot successfully resist an applica- 
tion to have such award made a Rule 
of Court on the ground that the sum 
is larger than was contemplated by 
the Government or Parliament at the 
time when the expropriation was 
decided upon, more especially as the 
applicants had, before such resolu- 
tion, claimed more than the amount 
ultimate^ awarded. 
Combrinck & Co. v. Colonial Goveni- 
nient 

AseomptioD, eubstitution, and surroga- 
tion — Executors — Letters of 
admiaist ration — Ordinance No. 104. 
The substitution and surrogation of 
ejoeutors have been been put an end to 
by Ordincmce No. 104. 
Application to authorise and require 
the Master of the Supreme Court to 
iesue letters of administration in 
faeour of a surrogated executor 
refused. 

-Bx^wrfe Smith .—/?<? Titterton's Estate 

Attachment — Gh)od8 — Security for costs 
^^088 V. Fanner 



130 



17 



13 



PAGE 



2. Out>tauding debts — Unsatisfied 

judgment— Bilenberg v. Jacobson & 
Company ... 

Bui Iding con tract — Termination — Justi- 
fication — Burns v. Town Council of 
Cape Town 

Cession of territoiy — International law 

— Private property — Concessions by 

barbarous potentate — Native 

customs — Paramount Chief— Treaty 

of 18 M with Faku— Sir Bartle 

Frere's Proclamation of 1878— 

Cession of Pondoland in 1894. 

Before the cession of Eastern 

Pondoland to the British Crown 

Sigoau, the Paramount Chief, made 

certain concessions to thd plaintiffs of 

all the mineral rights in the country, 

the right to construct a railway, and 

the right to select a large extent of 

land as their own property, but, 

besides searching for graphite in a 

few spots, the plaintiffs did not act 

under their concessions, nor did 

Sigcau grant to them any particular 

land. 

The native customs did not recognise 
such concessions, and, even if they 
did, there was no legal tribunal to 
enforce rights, but the Chief enjoyed 
despotic power to grant the rights if 
he had sufficient power to enforce 
them. 

After th e cession of the territory to 
the British Crown, and its incorpora- 
tion with the Cape Colony, the 
Colonial Government refused to 
recognise the concessions, where- 
upon the plaintiffs brought an 
action to have their rights thereunder 
declared as against the Government. 
Held, that the Court was not bound 
by the principles of international 
law to declare or enforce the qlleged 



82 



11 



DIGEST OF CAsfeS. 



PAQE 

rights, which could not, before the 
cession, have been enforced against 
the then sovereign. 

In the year 1878 the High Com- 
missioner by proclrmation purported 
to depose Umquikela as Paramount 
Chief but tooh no steps to carry the 
deposition into effect, and continued 
in several ways to recognise him as 
Paramount Chief, and after his 
death, the Government officially 
euidressed Sigcau, his son and succes- 
sor, by that title. 

The cession of the territory by Sigcau 
was founded upon his right to make 
such cession. 

Held, that the Government cannot in 
this action dispute his title as Para- 
mount Chief. 
Cook Bros. V. Colonial GoverDmeot ... 107 
Civilimprisonment — Clerk — Magistrate's 
discretion. 

Where a Resident Magistrate, in the 
exercise of his judicial discretion, had 
refused to grant a decree of civil 
imprisonment, in respect of an 
unsatisfied judgment, against a clerk 
employed in a ckeinisCs shop at a 
salary barely sufficient to support 
him, 

The Court, on appeal, refused to 
reverse the Magistrate's decision. 

Field & Co v. Wernikoff 26 

Company in liquidation — Sale of assets 
— Confirmation. 

Where the assets of a company in 
liquidation had been so\d in lots, and 
the debefUure-holders had had ample 
notice of the sale but had made no 
arrangements to purchase the assets, 
and the sale had been confirmed by 
the High Court of Griqualand, the 
Supreme Court refused on the appli- 
cation of the debenture-holders to 
interfere with the discretion e^sercised 
by the High Court, or to restrain 
delivery of the assets to the pur- 
■ chasers. 
Re North-eastern Bultfontein (Tiimited), 

in Liquidation 9 



PA as 

Construction of agreement — " Obtain 
and purchase " — Restraint upon 
exercise of legal rights — Proviso to 
clause. 

By agreement between a Mining 
Company and a Waterworks Com- 
pany the former undertook during 
the tei'm, of the agreement to << oblaiu 
and purchase " all the toater required 
by them for mining purposes from 
the loiter company and from no other 
person or^company whatsoever ; pro • 
vided that nothing herein contained 
shall prevent the said Mining Cjm- 
pany from using any water obtained 
by it from the mines or firom its 
wells. 

Held, that, the Mining Company 
were entitled to vee for mining 
purposes water from a mine whuh 
they acquired and worked after the 
date of the agreement and water 
which they diverted, with the consent 
of the Kimberley Town CouncUy from 
the Municipal area, it being clear 
that in neither case was the water 
acquired by pmrchase or by virtue of 
cm>y transaction equivalent to a 
purchase. 

De Beers Consolidated Mines v. Kim- 
berley Waterworks Company ... 100 

Costs. 

Where an ex parte application was 
made for an order compelling the 
trustee in an insolvent estate to file a 
contribution account, the mcUter teas 
ordered to stand over so that notice 
might be given to the trustee. 
Afterwards the Court refused the 
application with costs, as it appealed 
that the account had been filed the 
day before the original application 
was set doionfor hearing. 

Jones V. Vickers' Trustee 34 

Derelict Lands Act — Erven — Registra- 
tion — Notice — Ex parte Jansenville 
Municipality g 

Discovery — 332nd Rule of Court— Van 
Noorden v. Van Zyl loO 



r 



DIGEBT OF OASES. 



••• 
111 



53 



76 



PAGE 

G<iNnl vrenge — Bill of ladings York 
and Antwerp Rules — Sale of cargo 
^InieTdict. 

fikterdici granted to restrain the 

waiter of a ahip from selling part 

of dK cargo for the purpose of paying 

expenses of repairs it* a port not Mng 

a port of refuge; there being no 

ynnorteie grw^nd for holding .tiwt 

Ae damage to the Mpy fMch was 

eeeationcd by Hhe leakage ofsulphMric 

Qidd improperly eonneyedy to the 

kwnoledge of the master, in iron 

drwmsy wnsiitfded a loss for which 

toidnbHtion must be made by the 

ovmers of ihe rest of the cargo who. 

voder iheir hilU of ladii^, had 

agreed to be bound by the York 

aad Antwerp Rules of 1890, 

A re " HCT€*tine *' 

GoAnntee — Action on — Markham v. 
Frames ••• ••• •■• 

LcsEor andlessee— Rent—Tacit hypothec 
^ittaehment—- Beaaonable ground 
for belief of tenant*6 intention to 
Temove goods. 

A lessor, who reasonably apprehends 
thai the lessee will remove movables 
from the premises leased, is entitled 
to at order for the attachment of such 
movables pending an action to recover 
the rent due. 

Such apprehension is not unreason- 
able where the rent is long overdue 
after several applications for pay- 
Men/, and the lessor has reason to 
know thai the lessee had left pre- 
mises previously hired by him from 
anoAer person without payment of 
the rent due. 

Greeff V. PretoriuH 

Liquor licence -Act 28 of 1883, section 
89~No proof of prohibition. 
W. was charged with and convicted 
of contravening Act 28 of 1883 ^ 
section 89, in that he sold liquor to 
<»je H , to whom the sale of liquor 
had been forbidden for a period of 
twelve mon&i9 under the 89th section. 



PJLOE 

No proof u?as produced at the trial 
that H. had been forbidden liquor^ 
nor %oas there any evidence to show 
thai W. had any knovledge of the 
prohilition. 

Oo appeal the conviction was quashed* 
Regina y. Williams 20 



2. 



132 



— Act 28 of 1883, section 75— Con- 
travention— Sale without licence— 
Regina v. Wessels ••• ••• ••• 

Magistrate's CK)urt— Summons— Excep- 
tion — Damage?. 

Where y in a siimmcww in a Magis- 
ti-ate's Court for damages /or the 
xmongfxd taking atid selling of the 
plaintifs goods, it sufficiently 
appears that the amo^ud claimed is 
intended to represent the> valv^ of 
the goods, it is no ground of excep- 
tion that the summons ought to have 
claimed delivei-y of the goods loith 
an alternative claim for damages. 

Van der Westhuixen v. Cohen Brothers 



56 



Magistrate's jurisdiction — Set-off or 
compensation — Counter-claim — Ex- 
ception. 

In an action in a Magistrate's Court 
for £18, being for cash advanced, the 
ilefmdant excepted to the jurisdiction 
on the ground that he had a counter- 
claim for £23^ but admitted that he 
owed the £18 to the plaintiff. 
Held, that the. defendant's claim was 
reduced by his admission to £5 and 
thai, as this amount icas within the 
Magistrate's jurisdiction, he ought 
not to hare allowed the exception* 

Kerdel v. Bam ^^ 



••• 



••• 



2. 



Act 20 of 1856, section 10 — 

Ejectment — Agricultural Lands 
Act, 1882— Sub-lease. 
J., the wife of a licensee under Act 
37 of 1882, acting under a power of 
attorney from her husband, sub^let the 
land leased to II., but before the 
expiration of . the sub-lease she 
entered upon the property and resumed 
possession* 



4 

IV 



DIGEST OF CABE8. 



PAGE 

H. sued J. fit the Magistrate's Court 
for ejectment ^ and judgment vas given 
in favour of^. 

Held, OQ appeal, without deciding as 
to the validity of the sub-lease entered 
into between J. and 'EL., that the 
Magistrate would have been justified, 
owing to want of jurisdiction, in 
granting absolution from the instance 
on the claim for ejectment. 

Heams t. Jackson 137 



PAQ] 



S. 



Theft— Conviction on separate 



indictments. 

Where a pi'isoner vxm charged on 
ttoo indictments with the theft of 
different aHicleSy found guilty, and 
sentettced to separate terms of im- 
prisonment 9n each indictment^ 
The Ck>urt, on review, quashed the 
coihviction on the second indictment 

Regina v. Blauwveroi 53 

Marital power — Non-exclasion in ante- 
nuptial contract — Pjoperty regis- 
tered in wife's name — Leave to 
transfer without husband s authority 
— Rule WM<. 

Where a \roman married by ante- 
nuptial coninict, the marital power 
not being excluded, sought to transfer 
property regintered in her name icith- 
out the assistance of her husband, 
whose whereabouts were unknown, the 
Court granted a iiile calling ujxm 
the husband to show cause why his 
wife should not be allowed to pass 
transfer. 

Ex parte Trower 36 

2. Non-exclusion in ante-nuptial 

contract — Mortgage bond. 
The Court granted leave to the 
petitioner, %oho teas maiiied to her 
husband by ante-nuptial contract, the 
mariUU power not being excluded, to 
pass a moiigage bond, without the 
assistance of her husband, whose 
ii^iereaboiits were uiriknowHf /of* the 
balinnce of the purchase price of 



certain property which she had 
bought. 
Ex parte Miuto 

Mines and Minerals — Diamondiferoas 
ground — Inspection-^ Prima-faci^ 
evidence of the existence of dia- 
monds. 

Where the appliccmts had leased 
certain ground to the respondents, and 
under the lease tJiey were entitled to a 
surrender on the discovery ofdiamoftds 
in the grouftd leased, the Court on 
being satisfied that there ufos prima- 
&cie evidence of the existence of 
diamottds in the laiid in question 
ordered an inMj)ection of the groM\d 
for the. purpo«fs of n pending action. 

London and South African Exploration 
Co. V. Griqualand West Diamond- 
Mining Co • 

Minor — Insolvency — Fraud — Ratifica- 
tion — Delivery of title deeds — 
Power of attorney. 
The plaintiff*s father, two years 
before his ifisolveney, purchased a farm 
in the Transvaal for his daughter and 
had the same transfeired in her 
name. 

Two years after the date of insolvetunf 
the defendant, as trustee of the insol- 
vent estate, chiainedfrom the insolvetvt 
the title deeds of the farm and a 
power, signed by the plaintiff, ujko 
was still a minor, authorising the 
transfer of the farm, upon the 
hisolvenfs admission that the price 
of the farm had been paid in fraud 
of his creditors. 

The defendant never took any steps 
to have the transfer to the minor set 
aside or to recover the purchctse price 
finym the minor assisted by a ctmUor. 
The plaintiff married tvhUe still a 
minor wid uku not atoare of the 
delivery of the title deeds until it wcu 
discovered by her hu^Mf^ tico years 
after the marrvige. 
Nine yea^-s after sxuh discovery the 
plaintiff brought an actimi to reeovef 



/ 



DIGEST OF CASES. 



PAGE 

^ title deeds ii,rhdL iA> h.4Jbve the power 
Wttrtd of tw> eJTeci. 
Hddfthafc, ill. tlve ahse^nc^e of sufficient 
fraud, or of rati/icaiian^ the 
lif \DQ8 eiviitled to stioceed, 
WoMTr.Solonious Trustee 72 

Uioors— FiiDdfi m Mabter's hands — ^£!r 
pirit McGibYion — iie Minors 
McGibbou ... ••• ••• ••• 35 

Hsmn' portions — Intestacy — ^Widow — 
Seomty. 

Where it voas dearly for ike benefit 
cf mtNors thai the estate of their 
fsHiker, idio hckd du>d iutestatef and 
trho had been married in community, 
should not he immediately realised 
ft» pt»y their porlioiis, the Court 
aUoiDed their mother to remain in 
pos^sssiou of the estate, she undertak- 
ing to find security for paymeivt of 
tike minors shares, and to educcUe 
maintain them at hei' own 



Where two or more acts of negligetice 
haee coniributed to cause an if^ury 
tke lest of liability for each act is 
whether ike harm complained of is 
9ttek as a reasonable man should have 
foreseen as likely to happen. 
The Uabiliiy of ofie person for his 
ac€ does not exctdpcUe another person 
«?kc9e negligence has contributed tit 
OH injury whick ke ought to have 
foreseen as likely to hajtpen. 
The Town Council of East London 
haeing engaged a contractor to re- 
conMraet a road and to make an 
^Bcavaiion immediately adjoining the 
road, the contractor's servants left 
*ome casks of cement standing ofi 
oue side of the road and placed some 
iar^ stones near the excavation on the 
opposite side. 



He Clark's Estate 59 

''^gjigenc^— Liability of Town Council 
— Contribatory negligence — Con- 
tractor's negligence — Proximate 



PAQB 

The plaintiffs horse^ being driren 
past the caskSj skied at tfie canks 
aiui bolted toioards the excavation, 
Wken one of the wkeels of ike cart 
was a few inckes from ilie exca- 
vatioti tke plaintiff jumped from 
the cart and aligkted upon a stmie. 
The horse and cart moved on and 
escaped unhurt, but the wheel of the 
cart struck ike plaifUiffs leg and 
broke it. 

Held, oti appeal from tke East 
London Circuit Court, thai, although 
ike horse nuty in tke first instance 
have skied at tke casks, if ifie 
excavation icas improperly made 
aiul tken left wfenced by the defeu' 
dants and they ougkt to have fore- 
seen danger from their negligetice, 
they loould have been liable if the 
plaintiff kad fallen into ike. excavation. 
Held, further, that if the plaintiff in 
' jumping from tke cart did wliat a 
reatiOiutbly prudent man, impelled by 
ifie institict of self preservation, would 
have done, he ivas not guilty qf con* 
tributory negligetu:e and tke injury 
is legally attributable to tke existence 
of tke improper excavation, although 
the contractor may also be liable for 
improperly placing tke casks in tke 
street. 
Newman v. Kast Londovi Town Council 41 
Partners — Summons — Non-joinder — 
Exception. 

P. sfued R. in a Magistrates Court 
upon a promissory note signed by R» 
atid his partiker L., the latter being 
ait ike date of the issue of the summons 
domiciled in the S.A. Republic, and 
not within the jurisdiction. 
The Mctgisti'ate sustained an excep- 
tion of non^joinder taken by R. 
Held, on appeal, reversitig the -Magis- 
trate's decisioti that P. wcu justified 
m suing R., ^ pc^rtner within the 
jwisdictioni 

Alcock V. Du Preez TBuch. 1875, p. 
130) followed. 
Pienaar v. Rattray 67 



VI 



DIGB8T OF CASES. 



PAGE 

Partnership — Application for inter- 
dict reftiaed — Frecmantle v. 
Henning " 

Plea ill abatement— Fire policy— Cession 
— Proper person to sue. 
T.'s premises f insured hy the dtfei\r- 
dant company y having been destroyed 
by Jire, the company in terms of 
its policy utidertook to reinstate the 
premises . 

Premcus to the fire T. had assipied 
M his right, title, and interest in 
the policy to S., and had given the 
compamf notice of the cessicm. 
The premises not having been rebuilt 
to T/s satisfaction he sued the com- 
pany for the amount of the policy. 
Held, on a plea iu abatement, that 
S. tWM the proper person to sue^ not T. 
Trautmann v. Imperial Fire Insurance 

Company, Limited ... ••• ••• 08 

Prescription — Town Council — Public 
road — Inalienable land — Consent of 
Governor— Public pquare. 
Prescription rufis as against the Toion 
Chuneil in respAct of latid forming 
part of a public square, sxich land 
bking alienable with the consent of 
the Governor, 

Jones V. Town Council of Cape Town 27 

Proclamation 343 of 1894 — Sale of 
liquor without a licence— Convic- 
tion— Partnership— Servants. 

In Jamuiry, 1894, a liquor licence 

was granted to B., who at thai date 

carried on business at the Royal 

Hotel, Kokatdd. 

In the foUaiffing November, B. left 

the Colony, 

Before B. left he handed the business 

over to A., whovi he had taken into 

partnership some time previously. 

On the 29th November, A. aj)pUed 
for a transfer of the licence to him 

and it voas transferred on the 6th 

December* 

On the 2nd December, W., who 

was in B.'s service brfore helrft the 



21 



3 



91 



PACE 

Colony, a}id who remained in A/s 
service after B.'s dejxtrture, was 
charged with and convicted of selling 
liquor without a licence in contraven- 
tion of the Proclamation 34S of 
1894, section 10, 

Held, on appeal, that although the 
evidence would have been sufficient 
to justify W.'s conviction for con- 
tracening the. 4th and 5th sections of 
the Proclamatimt, his conviction 
uiuler the 10th section was wroftg, 
as '-V . was authorised by A. to sell 
liquor under the licence granted to 
his partner B. 

Kegina v. Ware 

Provisional sentence— Mortgage bond 

—Interest— Lindeiiberg v. Naude 

Receipts— Action to compel delivery — 

Smuts's Trustees v. Van ZyKe Kxe- 

cutors. ..• ••• ••• ••' 

Rent — Defence — Failure to execute 
written lease — Repairs — Rogers' 

Execu tors V. Jessop 

Sale of goods— Non-delivery withiu 
stipulated time — Onus. 
In an action on an oral contract foY 
the sale of goods the defendants 
pleaded, as the defence for their repu- 
diation of the contract, th^ non- 
fulfilment of a condition that the goodn 
shotdd be delivered by a specified date. 
Held, that the ouum of proving that 
no su>ch condition formed part of the 
cofUi'oct lay on the plaintiff, 
Clements & Co. v. Vos. — Clemeuti, 
& Co. V. Van Rhyn 

Setting aside judgment— Rule of C/Ourt 
329 — Entering appearance — Mis- 
take— ilaase, Vaughau & Co, v. 
Malcolm's Trustee 

Shares— Alleged sale — Conflict of evi- 
dence — Credibility — Character of 
witnesses — Walder v. Krynauw ... 

Slander— Publication— Admission . 

The Court, on appeal, refused to 
reverse a Magistrate's judgment 
1 awarding damages in an action for 



95 



3S 



2d 



31 



Dia£8T OF) CAjS]£8. 






PAGE 

iloMder, where aUkowgh no evidence 
of jmkUeaiiott had been given, still 
there was a clear admission in a 
Utter of apologif signed by the 
defendant that she had used the words 
compkaned oj". 

Hopev. lUsrio ... ••• ^^^ 

Special Justice of the Peace— Jurisdic- 
tion— Masters and Servants Act — 
Compensattofi ■ 

A Special Justice of the Peace has 
Mjmisdiction to order compensation 
under Act 15 of. 1856, section 13. 
Regina v. Zwart, alias I«laut and 
Jautjes ... ••• ••• ••• *-^ 

Splitting of claims— Exception— Slander 
—Wrongful dismissal- Damages — 
Magistrate's jurisdiction. 
R. issued ttoo summonses against F., 
one claiming £20 damages for slander 
and the other £20 damages for 
wrongful dismissal. 
The slanderous words were, spoken 
and the wrongful dismissal tookpUtce 
on the same date. 

The MagistraU, before whom the first 
case itjos heard, sustained an excep- 
tion that there had been a splitting of 
claims. 

Held, reversing the Magistrals 
decisioti, that there teas ito such 
legal comiection betioeen the tioo claims 
as to make a judgment in one 
decisive in the other. 
Ross V. Farmer "^^ 



••• 



Summons- Exception— Plaintiffs' right 
to sue — Limited company — Autho- 
rity. 

-4 director and the secretary of a 
limited company issued a summons 
cle^^ig an amount due for goods 
said and deUeered to the defendant. 
The summm%s alleged inter alia 
that the plaintiffs were the joint 
managers of the business, and were 
duly authorised to collect and sue 
for all accounts owing to the firm. 
The defendant ejxepted to the 
stutimons on the ground that it did not 



29 



100 



PAGE 

allege in what manner the plaintiffs 
had beeft authorised to sue^ ichether 
under the articles of associotioti, the 
trust deed, by resolution of share- 
holders, by power of attorney, or 
otherwise. 

The Magistrate before whom the case 
cams overruled this exception. 
Held, on appeal, upholding the Magis- 
trate's decision, that the exception was 
bad, as there teas a definite allega- 
tion in the summons that the plaintiffs 
were authorised to sue, no attempt 
having been made by the defendant to 
disprove that allegation. 
8toffel> V. Mills and Rethman (Limited) 
Tender — Insufficiency — Work and 

labour — Beetham v. Slainie 
Theft —Remittal— Review. 

Where a prisoner, charged on two 
counts (1) with amtravening Act 35 
of 1893, section 26, and (2) with 
theft, pleaded guilty, and the case 
teas remitted by the Attorney-General 
for trial on the charge of theft only, 
and the Magistrate tried the prisoner 
on both counts, found him guilty, and 
se^iUmed him to a term of imprison- 
nient on each charge, the Court on 
review quashed the concictiofi on the 
first charge, 

Regina V. Sym 

2. Act 35 of 1893 — Evidence 

sufficient to justify conviction — 

Regina v. Neethling 

Transfier duty— Act 5 of 1884— Heirs- 
Exemption— Begistrar of Deeds. 
Husband euad wife bequeathed their 
ttJoo farms O. and B. to their seven 
sons for the sum of £1,400. 
The testator died first and at his 
death O. uhis held by him under a 
quitrent grants and B. was held by 
him on lease from Government. 
A sum of money was tahen out of the 
estate for the purpose of acquiring B., 
but the agent who was entrusted wi^ 
the matter became fikanciaUy involved 
and both money and farm were lost 
to the estate. 



13 



65 



1 



Till 



DIGEST OF CAdES. 



PAGE 

One son died leaving insut^ and a 
daughter was born subieqttent to the 
making of the will, so that at the 
death of the testatrix there were 
living seven children and the issue 
of the predeceased son. 

The executor of the estate obtained an 
Order of Cow t sanctioning the con- 
veyance of O. to the heirs for £700; 
the Court also authorised him to over' 
look in the transfer two of the six 
soWi ^^^0 had neglected to adiate, 
and to transfer their shares to such 
of the other sons as might be willing 
to take them. 

Subsequently two other sons declined 
to adiate and of the two remaining sons^ 
L. and J., who adiated, L. accepted 
the four vacant shares and thus became 
entitled to ^y^-mXh^ of the farm and 
J. to one-sixth. 

The executor thereupon proceeded to 
pass transfer of the farm to L. and 
J. in the proportions q/'five-sixths and 
oue-aixth respectively, and tendered 
tranifer duty receipts showing an 
exemption allowed to each of them 
by the Civil Commissioner of oue« 
eighth of the value (£700) of the 
whole farm. 

The Registrar of Deeds took excep- 
tion to these allowances by the Civil 
Commissioner and contended that J. 
was only entitled to exemption upon 
one-eighth of oue-sixth of the value 
of the farm and L. to one-eighth of 
five-sixths. 

On application being made to the 
Court the contention of the Registrar 
of Deeds was sustained. 

Nolle V. Registrar of Deeds 105 

Trial — Applicatiou for postpouemeut 
refused. 

Where in an actio^i (kgainsi the 
Colonial Govem/metU the declaration 
had been filed on the l^ih November , 
the pkadmgs dosed on the 61h 
December y Oiftd the case set down for 
trial on the 28th February, 






PAGE 

The Court, on the appUcc^tion of 
the defendant, refused to order a 
postponement until the May Tertn. 

Cook Bros, v Colonial Goverumeut ... 6H 

Usufruct— Mutual will — Security — 
Minors — Administrators — Re- 
marriage of surviving spouse. 
Husband and wtfle, married in com- 
niunity, by mutual will reciprocally 
bequeathed to the survivor the life 
usufruct of their joint estate, afid 
appointed the children qf the marriage 
as heirs of such estate subject to tlie 
ustjfruct. 

The testator appointed the respou- 
dents as executor's of his will, 
administrators of his estate and, in 
the ecent qf the wife's marrying again, 
guardians of his minor heirs. 

The testator died first and some 
years (rfterwards the suroioor, the 
applicafU, married again, whereupon 
the respoiuietUs claimed the sole con^ 
trol and admi7i*stration qf the joint 
estate. 

Held that, although the applicant 
might be liable to give security 
against misappropriation or v)asie,she 
Wjos entitled, as usufructuary, to the 
control and administration of the 
joint estate. 

Furuivail v. Corn well's Executors ... 14 

Waiver of rights-'-Marriage in com- 
munity — Sale of property — Consent 
in ignorance of rights — Trespass — 
Damages. 

Where a woman by virtue of her 
}narriage in community had become 
eMiiled to a half -share in certain 
landed property^ and witlwut being 
fully acquainted with her rights 
cons&nted to a sale of the property 
by hefi' children^ who were ervti^led 
to the other half, 

Held that 9 there had been no tMuver 
of her lights, and that she ivas 
eiUitled to succeed in an action for 



r 



DIGEST OF CASES. 



ix 



PAQE 



trapass and da/nutges against the 
pmhattrj irho iras in occupation of 
At land, 
Steenkamp's Executrix v. Wieae 
Writ of arrest — 8th Rule of Court, 



60 



PAGK 

Writ of arrest refused where no 
application had been made to the 
Registrar under the 9th Rule of 
Court. 



McCahy v. Williams 



••< 



•»« 



136 




REPORTS OP ALL CASES 



DBOIBBD 



IN THE SUPREME COURT 



or TRS 



CAPE OF GOOD HOPE, 

DUBING THE MONTHS OF APEIL, MAY, AND JUNE, 1895. 
(WITH TABLE OF CASES AND DIGEST.) 



BBPOBTKD BT 

J. T>. SHEIL, 

Of THE INNER TBHPLE, BARRISTBR-AT-LAW, AND ADVOOATB OF THB 

SUPREHB COURT. 



VOL. V -PART li 

(1896.) 



CAPE TOWN : 
PJIUITBD IND PUBLISHED AT THB *«OAPB TIMES" OFFICE, BT. GBORGB'S ST. 

1896. 



i 



TABLE OF CASES. 



PAGE 

Aftieui Banking GorpoTation y. Bond... 209 

» n » ^« Van 

Broembean 149 

AKwi] North Board of Executors (in 



••• 



••• 



liquidation), re 

Btdenhont y. Bloem and Another 

Batey V. Viviar 

Beedle A Go. y. McLeod... 
Boud of Ezeeators t. Dean 
Bond J Intolyent Estate, re 
Boreherds, €2 |Kirre 
Bmnan (minor), re 
Botmao A Co. v. Haupt ... 
Bnnde t. Verdoes 
Bmd y. Sehaltze & Smith 
Brookfidd v. Brookfield ... 
BrowQ (minor), re 



*•• 



... 169 

... 149 

... 149 

... 223 

... 147 

... 221 

... 147 

... 157 

... 241 

... 184 

... 188 

171, 211 

• •• «XO 



(^pe of Qood Hope Bank (in liqaida- 

tH)D),r» 14;?, 172 

(innagh v. Cavanagh 182 

Qawen V. aaaacn 225 

Ooetc, eac /wie 241 

C<toian y. Gerd'a Tutors ^ 167 

ColoDial Ooyernment y. Andriea ... 146 

n „ y. L. and S. A. 

Bxploration Co 194 

Coionial GoYarnmeut y. Silo 209 

n Orphan Cham'. er y. Best er ... 149 

n }, „ y. Loubeer ... 146 

Creney and Others y. HaarhofTs Trustee 157 



*•• 



... 



••• 



• •• ^^o 

... 156 
... 171 
... 172 
169 



^^j ex parte 

I>»yT.Dajr 

D> Kock, ex jKiHe 

I^bitzar y. Jacobson ... 

I^Heillon, re 

Oa^ampp, Horslej & Co. v. Kretzinger 146 

... 147 
... 224 
... 165 
... 159 
... 146 
... 224 
..• 146 



^ Villiers, ex parte 

De Villicri, ex parte 

. „ y. Wolhuter 

IWiion y. Dickson 

>, Bayly A Co. y. Saniford 

^^ (minors), re 

Du Fleesis y, Kou< 



... 



PAOK 

Duraan v. Grease 147 

D.R. Cnurcb y. Snyman 147 

Dn Toit's and Blazam*s Ante-nuptial 

Contract 211 

Du Toit's Estate, re 248 

... ... ... Xoo 



}} 



>i 



»> 



Eaton, Robins & Co. y. CUliers ... ... 149 

V „ y. Fonchee ... 224 

If n V. Redelinghnys ... 147 



i» 11 V. Uys 


... 


... 


147 


Elliott, eae^r^e 


... 


... 


148 


Eyaus, eac par*e 


... 


... 


167 


Ferreira y. Du Plessis ... 


... 


*• . 


225 


Fletcher & Co. y. James 


... 


.. . 


147 


Fletcher's Executors r. Keytel 


... 


... 


147 


Fourie, ex parte ,^, 


... 


... 


147 


Friberg y. De Jager 


... 


... 


161 



Gourlay & Co. v. Simons .„ 187, 224 

Grand Parade Building Co. y. J^annucci 167 
Grundling*s Ejecutor y. Lategaan and 

Others 143 

ll&ll, ex paiie 224 

HalFs Estate, re 230 

Hand & Co. and Others v. Simouhoff ... 149 

llauptflei»ch y. Hauptflcisch 153 

Hawkins v. Hawkins 187 

Hayward v. Qerd^s Tutors 207 

„ V. Hayward 153 

Hepworth & Sons y. Colonial Govern- 



ment 

Herman's Estate, re 

Heydenrych v. Hubbard 
Heynemau':* Trustee y. Loubser 
High Sheriff V. Klynhaus 
Hoftneyr & Regter y. Du Toit ... 
II if V . irage . . , 

H llinghurst v. Frame & Co. ... 

Hooper's Estate, re 

Hopley, e3c/;ar*e 

Hudson, Vreede & Co. v. Cooper 
Humph rie.4, ex parte 



• ♦ t 



•♦» 



251 
225 
147 
185 
147 
146 
209 
167, 224 
... 157 

... ««o 

... 171 

148 



... 



..» 



1 



11 



TABLE OF CASES. 



PAOK 



Ireland, Eraser & Co. ▼. Bonamici ... 147 



Jones Y. Town Council 

Town ••• .•• 
JuIPs Estate, re 



of Cape 
... 172, 183 

... ••• 144 



Kay, exparie .... ... ... ... 210 

Kilian*8 Eistate, re » ... 225 

King T. Voigt 209 

Klaiba v. Klaiba 157 

Koch v. R.M., Van Rbyn's Dorp and 
Zackon ... ... ... ... 155 

Koch y. Zackon 223 

Kohler and Others v. Baartman ... 241 

Kraase, ea; |>arte 148 

Kyd^expaHe 148 

Latriet's Executrix v. Snyman ... ... 224 

Lewis V. Du Toit 147 

Lithman y. Horn 171 

Lloyd's Will, re 150 

London and SwA. Exploration Co. y. 

G.W. Diamond Mining Co. ... 148 

London and S.A. Exploration Co. y. 
Official Liquidator N.E.B. and 

Registrar of Deeds, G.W 235 

Loock y Kluyts 171 

Marin cowitz y. Matthys 229 

Maskew's Executors y. Van der Walt... 146 
„ „ y. Van der Walt 

( J.D.'s son) ... ... ... ... 146 

Mason y. Mason 148 

Master y. Gerd*s Tutors 147 

„ y. Groenewald*8 Executors ... 149 

„ y. Louw*fl Executrix 149 

Matthys y. Henning 163 

Maxwell A Earp y. Nefdt 149 

„ ex parte — re Nefdfs 

Estate 167 

McColla y. Taylor 207 

Mclntyre, ex jMir^e 146 

McLeod y. Beedle A Co. 183 

„ y. Meyers 167 

Megone, ex |)ar<e 143 

Meyer and Others y. Meyer's Executors 248 
Mitchell, exparte-^e Blyth's Will ... 157 
Mill's Executors y. Stellys and Others 188 
|i|or^enrood y. Mor|;enrood 147, 149, 169 



Naude y. Executrix 

Nel y. R.M. of Worcester 

NeFs Insolyent Estate, re 



PAOB 

... 171 
... 153 
... 156 



Oppel and Others y. Le Roox and 

Others 151 

Osborne, ex /xftrie 171 

O'Shea y. Port Elizabeth Muni- 
cipality 169, 173 

Parkin and Others y. Lippert and 

Parkin 211 

Pentony y. Porter 159 

Petersen y. Frame and Wife 187 

Phillips y. Burger 146 

Poppe, ex par«e 167 

Preiss, ex |Mirte 224 

Price, ex jpaHe 224 

Prins y. Ronx 224 

Rautenbach y. Ferreira 172 

Regina y. Allies ... ... ... ••• 185 

„ y. Keyter 159 

„ y. Van Rooyen 220 

„ y. Vedderi 159 

Rodger'b Estate, re 169 

Rolfe, Nebels & Co. y. Curtis 187 

Rotheuburg y. Rothenburg 228 

Rudd y. Rudd 162 

RuBSOUw, exparte 167 

Russouw, expckrie 210 

Scheepers y. Scheepers 228 

Scboltz y. Burkes ... 148 

Schunke's Insolyent Estate, re 229 

Scott's Estate, re 187 

Seale y. Seale 170 

Sharp y. Sharp 169 

Sieberbagen, re ... 153 

Simons y. Simons 169, 221 

Slabber y. Neezer's Executor 189 

Slabber's Trustee y. Neezer's Executors 189 

Smith y. Black's Executors 167 

Smith y. Smith 211 

Snyman's Estate, re ... 143 

South African Association y. Honey ... 224 

Mutual y. Mannix ... 149 
„ y. Rorich ... 149 

Standard Bank y. Hay 224 

y. uys .*• ••« f*. LVi 



if 



»? 



TABLE OF CASES. 



••• 
lU 



Stayn'sEatate, re... 

Sdjdom Y. Strjdoin*8 Tnistee ... 

Stuk A Co. Y. Reeler 

Staiiniian*9 Estate, re 

Sntberlftiid Municipalityy ex parte 

SattOD (miDors), re 

Tamer's ESstate, r« 

Tbeffon y. Barnard 

Toucher Y. Zoer ... 

TroOip's Estate, re 

Turner, ex /Nsrte ••• 

Twentymao & Co. v. Zaron 

Van den HeeTer (minors), re ... 

Ymd der Byl r. Rejneke 

Via der Spay Bros. v. Lioewenthal 
Van Noorden v. Theroo 
„ T. Van Zyl 



PAGB 


• •• 


211 


• •• 


144 


.•• 


146 


•* * 


148 


• •• 


153 


■ • • 


173 


• •• 


159 


*• • 


ao7 


• •• 


201 


• •• 


225 


• •• 


147 


• •• 


187 


••• 


188 


*•• 


209 


••• 


209 


••• 


146 


• •• 


165 



PAGE 

Vermaak'a ESxeentrix y. Vermaak'e Exe- 
cutors 172, 193 

Yickers y. Vickers 188 

Yisagie y. Yiaagie ... 171 



Wessals y. La Grange — 
„ Y. Snyman 

Whelan y. White 

Whipp Y. Whipp ... 
White (an alleged lanatic), re 
WUey A Co. y. Harris ... 
WUkinson y. Wheeler ... 

Wilson Y. Jafta 

Wolfe Y.Wolfe 



... 147 

... 147 

... 226 

... 225 

... 225 

... 147 

... 147 

... 167 

... 188 



Zeederberg & Duncan y. Klaas & Hellig 167 
Ziegler*s Trustees y. Liabermann, Bell- 

stedt A Co 230 

Zoer Y. Arnold .•» ... ... ••• 149 




J 



CASES DECIDED IN THE SUPREME COURT, 



0-A.FE OOLOISrY. 



SUPREME COURT. 

(IN CHAMBBBS.) 



[Before Sir J. H. DB ViLLiEBa, K.C.M.G. cChief 
Justice), and Mr. Ju tice Upington, 
K.aM.G.] 



CASBB BKMOVBD. 



j 1895. 
{April 2nd. 



Mr. Qiddj applied for the remoTal of the fol- 
lowing eriminal cases from the Supreme Court 
to the Cireait Court to be holden at the Paarl on 
April 23 : The Queen v. Anthony Petrus Keyter, 
for culpable insolvencT ; the Queen v. the Same, 
for frauduleot insolvency, or otherwise theft, or 
otherwise culpable insolyency ; the Queen v. the 
Same, for theft; the Queen Y. David Joeephus 
StrauBB, for oontrayening section 36 of Act 5 of 
1881, known as the Transfer Duty Consolidated 
Amendment Act of 1884; and the Queen v. 
Petms Abraham Nel. on a similar charge. 

The Chief Justice said : The insolvency cases 
•re important^ and perhaps had better be 
tried at the Criminal Sessions than before a 
juiy at the Paarl sitting as such for the first 
time. 

Mr. Giddy said all the witnesses were from 
Calvinia, and it would be much more convenient 
•nd less expensive if the cases were tried at the 
Circuit Court. 

The application was granted. 



Ez parte ^.saoim. {j,^^^^^^ 
Advocate — Admisition. 

A barrister who appiies to ha admitted to 
practise as an advocate of the Supreme 
Cotoi should be present when the appli- 
cation/or his admission is made. 



Mr. Innes, Q.C., applied for the admission of 
William Bernard Megone, of the Middle 
Temple, as an advocate of the Supreme Court, 
ttie oath to be taken before the British Resident 
ia Pretoria. 

V 



The Chief Justice observed that it was not 
right for barristers to apply in this casual 
manner for admission. They should at least 
make one appearance before the Supreme Court. 

Mr. Innes : There are several precedents 
for the present application. 

The Chief Justice : That may be so, but it 
does not take away from the desirability of 
counsel making at least one appearance if they 
think it worth while to be admitted. 

The application was granted. 



of 



Fai parte KYD. 

Mr. Shippard applied for the admission 
Alfred Edward Eyd as an attorney. 

The application was granted, and Mr. Kyd, 
who was present, was duly sworn and admitted. 



GAPS OF GOOD HOPE BANK. 

Mr. Innes, Q.C., applied for the confirmation 
of a number of compromises, of which notice 
had been duly given, as required by previous 
order of the Court 

The compromises wore confirmed. 



obundling's executor v. lategaan and 

OTHERS. 

Mr. Searle, Q.C., applied for an order for the 
attachment of Anna Elizabeth Maria Ungerer, 
executrix of her husband's estate, for contempt 
of the Court's order of the 2nd November last. 

An order was ma<le requiring respondent to 
sign the necessary power of attorney for passing 
sub-divisional transfer of the farms Buffelsjacht- 
fontein and Wateikloof by May 31; failing 
compliance or cause shown to the contrary, the 
Deputy Sheriff to be authorised to sign the power 
on her behalf. Applicant to have costs. 



ESTATE OF THE LATE L0UREN8 MARTHINU8 

BNY5IAN. 

Mr. Buchanan applied for an order granting 
the executors in this estate a further extension of 
six months' time within which to pay the minors' 
portions i^to the Guardians' Fund. 

The order was granted. 



144 



ESTATE OF THE LATE JOHN LAUBRNCE JULI. 

Mr. Molteno applied on behalf of Rachel 
Bowler, executrix testamentary of the estate of 
hvv late brother, and guardian of John Bdward 
JuH. for an order authorising her to raise a loan 
of .£120)))' hypothecation of erf 11, situate at 
Cliireinont, Hub-division of the estate Sans 
Houci, to enal)le her to pay out Mrs. Eliza Juli. 
the niiaor'u Btepmother, her share, and to meet 
the expenses incidental to the liquidation of the 
estfite and of this application. 

The application was grant«d. 



( 1896. 

STRYDOM V. STRYDOMB TBUSTBE { April 2nd. 

/ July 3rd, 
Sa .. — Po^t,IfJ;ul^ent — Insolvent's interest in 

bnid. 
Whf'rr the sale of an insolvent's interest in 
crrfdfn land had been postponed for three 
mouths, by order of Court to enable an 
uffion to be instituted to set aside the eale of 
(I fife interest in the land, and at the expira- 
tion of the three months no action had been 
commenced^ the Court refused to order a 
further postponement of the sale. 



These were two applications. In the first 
Cornel is Johannes Strydom (the second-named 
applicant's boq) applied for an order restraining 
the respondent, John Cairncross, in his capacity 
afl the trustee of the insolvent estate of Petnis 
A. ix. Strydom, from selling certain ground 
specified in a sale notice published by the 
respondent. 

In the second application the insolvent prayed 
for a similar order against his trustee, John 
Cairncross. 

The factK as deposed in the affidavits are 
these : The firt^t-named petitioner is an heir 
under the will of Catherine B. B. Otto, now 
alleged to be an imbecile. According to an 
advertisement of sale published by the respon- 
dent he proposes to sell on the 3rd instant on 
account of the insolvent estate of P. A. Q-, 
Htrydom a certain right to Lot Q ot Zeekoe 
River in the division of Oudtshoom. Catherine 
E. B. Otto and her first husband, Andries 
Gabriel Greeff, executed a mutual will on 30th 
June, 1850. in teims of which certain shares in 
the farm Zeekoe River were, bequeathed to the 
iuHolvent (their godchild) subject to a life 
interf'Ft in favour of the survivor (now Mrs. 
Otto). A f ter the death of G reelf , the survivor 
in 187i) passed transfer to the second-named 
ft]>l)l icant of one-half of the shares so bequeathed. 



and gfave him possession thereof on condition 
that she should remain in possession of the 
other half of the property. 

In the year 1881 the second-named applicant's 
estate was sequestrated as insolvent and the 
half-share of the property which had been 
transferred to him was sold in his estate and 
realised £4,300. The trustee also offered for 
sale the other half, of which Mrs. Otto retained 
possession, for which the sum of £600 was only 
bid because, it was alleged, it was not clear to 
whom the property belonged or on whom it 
would ultimately devolve. 

The trustee finally liquidated the estate 
without taking any further steps to dispose of 
the other half-share of Zeekoe River, and in 
1890 the insolvent was rehabilitated. 

The former trustee having removed from the 
Colony the creditors last year had another 
trustee (the present respondent) appointed for 
the purpose of disposing of the insolvent's 
interest in the half -share of the property which 
had been retained by the testatrix. 

In September, 1894, the respondent advertised 
that he would sell by public auction the interest 
of the insolvent in the remaining half of 
Zeekoe River. 

On 17th September, 1894, the insolvent 
obtained an interdict at the Circuit Court held 
in Oudtshoom restraining the Unstee from pro- 
ceeding with the sale pending an acion to be 
brought by him for a declaration of rights. 

This action was brought on 8rd December, 
1894. and on the 12th December following 
judgment was given on an exception taken to 
the declaration by the trustee, the Court holding 
thatupon the death of the testator the insolvent 
acquired a vested right of reversion in respect 
of the farm which by virtue of section 48 of the 
Ordinance became vested in his trustee before 
the confirmation of his account. (See Strydom 
T. Strydom $ TmsUe, 4 Shell, 429.) 

The trustee intends to sell to-morrow (3rd 
April) the insolvent's rights in the half-share of 
the farm. 

The second-named petitioner alleged that the 
heirs, under a will executed by Mrs. Otto in 
1898, would claim the land as bequeathed to 
them and would on the Srd April protest 
against the sale, and he submitted that in 
consequence of the second will, the notioe of 
protest, and an impending lawsuit, the proper 
value of the land would not be realised, whereas 
if the matter were finally settled, and the 
trustee, in disposing of the insolvent's rixhte 
could guarantee transfer on Mrs. Otto's deceasel 
the land would realise at least £1,000 more than 
the deficiency in his estate, which surplus would 
come t9 him, 



145 



The fint-uuned petitioner ooniended that 
tht haded property belonged to the estate of 
Xn. OttOk and that it would he prejadioial to 
hsiaterestB ae an heir were it to be sold on 
aeeooat of the inaolvent estate of P. A. G. 
Strjdom. 

He lUqjed tiiat with the object of Btopping 
the lale and for other purposes he took steps at 
tlie Isst Circoit Ooort held at Oudtshoom on 
the fM. March, 1896, to prooore the appoint- 
meot of a curator to supervise and manage Mrs. 
Otto'B eitate. 

LAt the prooeedinga before the Cironit Court 
ths learned judge, Mr. Justice Buchanan, 
declined to declare Mrs. Otto of unsound mind, 
bat sU parties consenting Mr. Redmond Barry 
was appointed e»raim' boni.—H&FJ] 

The petitioiier alleged that he had requested 
Bsny to take immediate steps to stop the sale, 
peading an action to be instituted to have it 
deelsred that the property belonged to Mrs. 
Otto'i estate, bat that Barry declined to 
intervene on the grounds that he had not yet 
received his official appointment from the 
Master of the Supreme Court. 

The petitioner finally alleged that he was 
afraid that Barry would not be able to obtain 
Ui appointment from the Master in time to 
caaUe him to stop the sale. 

The prayer was for an order restraining the 
tnatee from selling the property or any right 
therein pending an action to be instituted by 
the curator at the first-named petitioner's 
inttanee. 

Before proceedings were taken to have Mrs. 
Otto decisred of unsound mind she had sold 
ker half-ahare in the farm to Mr. G. Olivier, 
who duly took transfer, and the object of the 
proceedings before the Circuit Court was 
■aialy to set this transaction aside. 

The position taken up by the respondent was : 
lit, that Mrs. Otto having adiated and accepted 
benefits under the mutual will and codicil 
could not make another will contrary to the 
provisiotts of the former will ; 2ndly, that the 
property itself was not offered for sale but 
only the insolvent's rights thereto ; and Srdly, 
that the applicants were aware that Mrs. Otto 
had sold and transferred her right to the 
ptop ert> and therefore had no further interest 
or elaim therein. 

The respondent further alleged that the debts 
doe by the insolvent estate amounted to £1,900, 
sad that the property was only valued for 
Dtvisloaal Gooncil purposes at £1,200. 

That the laigeat creditors having an interest 
in the insolvent estate were resident in Oudts- 
Wen, and it was their desire that the right 
Aoold be sold as adrertised. 



Mr. Searle, Q.C., for the applicants. 

Mr. Bose-Innes, Q.C., and Mr. Juta, Q.C., for 
the respondent. 

The Court postponed the sale for three 
months. 

The Chief Justice said : It is to the mtere^tH 
of all parties that the disputes about thin hind 
should be settled. The Court will therefore 
order the postponement of the sale for three 
months so that Bome understand ing may iie 
arrived at, failing which that the curator, if 
so advised, may institute proceed IngH ngaiu^t 
Olivier to have the sale to him by Mrs. Otto 
set aside. The question of costs will Btand over. 
Afterwards on the Ifoth June. isu.">, (!. J. 
Strydom called upon the trustee to show cau^t? 
why the order granted on the 2nd April should 
not be extended for a further period, to enaUe 
the applicant to proceed in his own name, at 
his own instance, with an action againnt 
Olivier to have the sale to him by Mrs. Otto bet 
aside on the grounds that she was not oi Kound 
mind when she entered into the trantjaction. 
The applicant alleged that he had done all he 
could to induce the curator bonh to take action 
against Olivier, but that as the curator bonln 
declined to take any steps, he (applicant), as an 
heir under the will executed by Mrs. Otto in 
1893, was about to do so. The reasons assigned 
by the curator bonis for not proceeding against 
Olivier were that (1) Mrs. Otto was quite 
rational and able to express her wishes, aiul (2) 
that she had refused to sign a power of attorney 
to enable action to be taken against Olivier. 

The latter application was heard on 3rd July, 
1895 (before Sir Jacob Barry aad Mr. Justice 
Upington), and refused with costp. 

Sir Jacob Barry said : We are not satistied that 
this is a bona /ir<:^« application, and we also think 
that the applicant has had ample time in whicli 
to bring his action. He has not done so, and 
the Court will not, therefore, grant this appli- 
cation; it further not appearing that the ap}iii- 
cant will be clearly prejudiced by the sale, 
which is a sale for the purposes of whioli tlie 
trustee was appointed, and which it would 
unless there were very special circunict antes, be 
his duty to carry out. This sale has been advor- 
tised, and we cannot stop it. The apjilication 
is therefore refused with costs. Leave is granted 
to make a further application regarding the 
cost« of the former application. 

f Applicant's Attorney, C. C. de Villiers ; 

Respondent's Attorneys, Messrs. Fair])ri(lge. 

Ardeme k Lawton.] 



I 



l46 



SUPREME COURT. 

(IN CHAMBEfi!J.) 

[Before Sir J. H.DK Villiebs K.C.M.G, (Chief 
JuBtice)t and Mr. Justice Upinoton, 
K.C.M.G.] 



COLONIAL GOVERNMENT V. 
ANDBIES. 



I 1896. 

(April 9th. 

Mr. Justice Upington mentioned this case, 
which had come before him as judge of the 
week from the Resident Magistrate, Cape Town. 
He said: Andries was charged with contraven- 
ing the Railway Bye-laws by loitering on the 
railway premises. The Magistrate, in error, 
sentenced the man to twelve months* imprison- 
ment with hard labour. The Magistrate had 
no power to do so. He was under the impres- 
sion that the man before him was an habitual 
drunkard, but that was not the charge. In the 
Court's opinion the conviction must be quashed* 
inasmuch as the contravention of the bye-law in 
queution was punishable by a fine, which could 
not now be paid, as the man had suifered 
imprisonment. 

Ex parte MCINTYKE. 

Mr. Buchanan applied for the admission of 
William Henry Cameron Mclntyre as an 
attorney and notary. 

The application was granted. The oaths to be 
taken before the Resident Magistrate, King 
William^B Town. 



SUPREME COURT. 



[Before Sir Hfney dk Villiebs, K.C.M.G. 
(Chief Justice), and Mr. Justice Upington, 
K.C.M.G.] 

PROVISIONAL ROLL. 



PHILLIPS V. A. BUEOBB. [ . ^^?K.y^ 

(April 18th. 
Mr, Tredgold applied for the final adjudica- 
tion of defendant's estate. 
The application was granted. 



DICKSON AND OTHERS V, B. RANDIFORD, 

Mr. Shell applied for the final adjudication 
of defendant's estate. 
The application was granted. 



HOFMBTB AND ANOTHBB V. 0. P. J. DU TOFT. 

Mr. Buchanan applied for provisional sentence 
for £9 128., being balance due on promianoiy 
note. 

The application was granted. 



BTUBK AND GO. V. A B. W. REELBB. 

Mr. Buchanan applied for the proviBional 
order sequestrating defendant's estate to be 
made final. 

The application was granted. 



MASKBW'S BXBOUTOBS V. O. J. VAN DBS WAUT. 

Mr. Buchanan applied for provisional sentence 
on a mortgage bond of £460. 

ProYisional judgment for plaintiff as prayed 
was granted, and the property declared 
executable. 



MASKEW'S BXECUTOBS Y. O. J. VAN DBR WAI«T, 

J.D.80N. 

Mr. Buchanan applied for provisional sentence 
on a mortgage bond for £200 and interest. 

Provisional judgment was granted, and the 
property declared execntable. 



STANDARD BANK Y. A. J. UTS, BEN. 

Mr. Molteno applied for the final adjudication 
of defendant's estate. 
The application was granted. 



DU PLBS8IS Y. F. J. BOUX. 

Mr. Tredgold moved for provisional judgment 
on balance due on promissory note for £32 
3s. 9d., less £10 paid on account. 

The application was granted. 



DE8CHAMP8 AND ANOTHBB Y. J. A. KBETZOrOEB, 

J.J.80N. 

Mr. Molteno applied for provisional sentence 
on good-for for £16 4s., promissory note for 
£36 6s. 6d., promissory note for £86 8b. 8d., 
promissory note for £80, promissory note for 
£23 8s. 8d. 

The application was granted. 



YAN NOOBDEN Y. J. P. THEBOK. 

Mr. Buchanan applied for provisional sentence 
on promissory note for £104. 
The application was granted. 



COLONIAL OBFHAN CHAMBBB Y. A J. LAXTBBBS. 

Mr. Jones moved for provisional sentence on 
mortgage bond for £l,5U0. 

The application was granted, and the property 
declared executable. 



147 



THB MABTBR Y. QKBD^B TUT0B8. 

Mr. Baohanan mored for an order calling 
vpoD the eaid iators to file accounts of their 
tatorship. 

Ilieiisiial order was granted. 

lATOK, BOBIN8 AND CO. Y. J. A. J. UTS. 

Mr. Cnrrey moYed for judgment for costs.] 
Tbe application was granted. 



VLBTCHEB*B RZBCUT0B8 Y. KBTTEL. 

Mr. Tredgold moved for provisional sentence 
on ft mortgage bond for £1,260, less iL30 paid on 
ftoooant 

The application was granted, and the property 
declared executable. 



WILKIH80N Y. WHEBUCB. 

Mr. Watermeyer moved for the discharge of 
tile prorisional order. 
The application was granted. 



nUDJiND AND OTHEBS Y. BONAMIOI. 

Mr. Tredgold moved for judgment in terms 
of the consent fUed. 
The appiicaUon was granted. 



DGTCH BKFOBMED CHUBCH Y. W. D. BNYMAN. 

Mr. Maskew moved for provisional sentence 
on a mortgage bond for £2,250, together with 
£136, the latter amount being interest on the 
bond at the rate of 6 per cent, from Ist Novem- 
ber, 1893, to 31st December, 1894. 

The application was granted, and the property 
deebkred executable. 



WB88K1JS V. J. A LA OBANOB. 

Mr. Molteno applied for provisional sentence 
lor £17 18e. 2d., being interest at 6 per cent, 
upon a certain mortgage bond. 

The application was granted. 



Y. W. D. SNYMAN« 

Mr. Molteno applied for provisional sentence 
on mortgage bond for £260. 

The application was granted, and the pro- 
perty declared executable. 



DUBAAET Y. GBESSE AND ANOTHBB. 

Mr. Maskew applied for provisional sentence 
on ft mortgage bond for £300, less £221 19b. paid 
ontcoount. 

The application was granted, and the property 
declared executable. 



LBWIB Y. H. C. DU TOIT. 

Mr. Graham moved for provisional sentence 
on promissory note for £121. 
The application was granted. 



BOABD OF BXECX7T0BS Y. F. DBAN. 

Mr. Graham moved for provisional sentence 
on mortgage bond for £1,600. 

The application was granted, and the property 
declared executable. 



ILLIQUID ROLL. 

FLBTCHBB Y. G. JAICES. 

Mr. Jones moved for judgment for 
£90 2s. 6d, being £87 10b. for rent and £2 16b. 
for goods sold and delivered. 

The application was granted. 



WTLSr AND CO. Y. B. BABBIS. 

Mr. Watermeyer moved for ju gment for 
£49 16s. 6d.. goods sold and delivered. 
The application was granted. 



HIGH BHBBIFF Y. KLBTNHANB. 

Mr. Buchanan moved for judgment for 
£27 10s., being the Feoond and final instalment 
of the purchase price of land sold by the Sheriff. 

The application was granted. 



BATON, BOBINS AND CO. Y. J. BBDELINGHUTB. 

Mr. Tredgold moved for judgment for costs. 
The application was granted. 



HBYDBNBTOH V. HUBBABD. 

Mr. Maskew moved for judgment for £18, 
being due for rent, and £8 lOs., being due on two 
I O D 's. 

The application was granteiL 



Hie parte FOUBIB. 

Mr. Buchanan applied for the admission of 
Petrus Jacobus Fourie as attorney and notary. 
The application was granted. 

BBHABILITATIONB. 

The estates of Jacobus Petrus de Villiers, 
Mabel Eugenie Tamer, and Charles Wm. 
Borcherds were rehabilitated. 



THB PETITION OF AMELIA J. UOBGBNBOOD. 

Mr. Currey applied for leave for the petitioner 
to sue in forma paupcrU in an action against 
her husband for divorce by reason of his alleged 
adultery. 

The application was granted. 



i 



1 



l48 



IN THE B8TATE OF THS LATB DAKDfiL 
BTUUBMAN. 

Mr. Tredgold applied for aa order to 
make absolate the rule niii for transfer to 
the eldest son of the said Stuurman, according 
to the customs and usages of the Tembu tribe, 
of certain farm, the property of the estate, 
situate in the Tambookie location, in the 
district of Queen's Town. 

The application was granted. 

UABON v. MASON. 

Mr. Molteno applied for an order to 
make absolute the rule nisi for dis- 
solution of the marriage subsisting between 
the parties by reason of the respondent's 
foilure to obey the order for restitution to his 
wife of her conjugal rights, and for an order 
declaring a forfeiture of the benefits under the 
marriage in community, and giving the custody 
of the minor children to the mother. 

The application was granted. 



SUPREME COURT. 



LONDON AND SOUTH AFBIOAN BX- f 

PLOBATION COM PANT V.GBIQUA- J 1895. 
LAND W&8T DIAMOND MINING i April 9th. 
OOMPANT. C 

Mr. Searle, Q.O., with whom was Mr. Currey, 
applied for a further order directing Captain 
Quentrall, the viewer appointed by the Oourt, 
to take such further steps by removing 
the tailings, or otherwise, so as to enable him to 
locate the exact position of the spots referred to 
in the affidavits of Calf and Owen, as also the spot 
or shaft referred to in the affidavits of Van 
Copenhagen and McLeod, and to inspect the 
same and the ground in the neighbourhood 
thereof. 

Mr. Rose-Innes, Q.C., appeared for the re- 
spondents. 

The Chief Justice said: The Court will 
authorise Captain Quentrall to remove, at the 
applicant company's expense, as much tailings 
as he might consider reasonably necessary to 
remove in order to discover the two holes not 
yet located in terms of Sthe order of Court 
dated 14th January, 1895,** costs to be oostsin the 
cause. 



BOHOLTZ y. BUBKES. 

Mr. Shippard applied for the attachment of the 
farm O, No. 389, in the division of Hay, belong- 
ing to the defendant, ad fundandam jurUdie' 
tionem, and for leave to sue by ediotal citation. 

The order was granted, and was made return- 
able on the Ist day of August, 1895, personal 
service if possible, failing which one publication 
in the *' Diamond-fields Advertiser," the 
*' Beobuanaland Kews,'* and the '* Government 
Gaaette." 



[Before Sir Hbnbt db Villdbbs, K.O.M.0. 
(Chief Justice), Mr. Justioe BlWHAMAK, 
and Mr. Justioe Upinoton, K.C.M.G.] 



Advocate — Admission — Graduate Cape 
University — LL.B. degree Caii.bridge — 
AdmisFJou to the same degree Cape 
Uuivemty — Act 16 of 1873, sections 8 
and 20. 

A graduate of the Cape University and an 
LLB.f Cambridge, admitted to the same 
degree Cape University, is entitled to he 
admitted as an advocate of the Supreme 
Court, although he has not been called to 
the English or Irish Bar, and is not an 
advocate of the Court of Session, Scotland. 



This was an application for the admiflsioii of 
Mr. Ludwig Emil Krause as an advooate under 
Act 16 of 1878, sections 8 and 2a 

The certificate of Dr. Cameron Registrar, 
Cape University, which was annexed to the 
petition was as follows : 

/ hereby certify that on the 26^A day of 
Jaunary, 1895, Mr, L, E, Krause, B.A, (Univer- 
sity Cape of Good Hope) a/nd LLB. (Univer- 
sity of Cambridge), iva^ admitted to the Degree 
of Bachelor of Laws in the University ef the 
Cape of Good Hope, 

JAMES CAMERON, LLD., 

Registrar. 
Mr. Watermeyer moved. 
Mr. Krause was duty sworn and admitted. 
[Petitioner's Attorneys, Messrs. Fairbridge, 
Ardeme k Law ton.] 



JEig parte KLLIOTT. 

Mr. Close applied for the admission of Mr. 
Frank Uhlthoff Elliott as attorney and notary, 
and that the oaths be administered at Port 
Elizabeth. 

The application was granted. 



• Vide 5 Shiel, p. 4. 



BXHABILFTATIONS. 

Mr. Close applied for the rehabilitation of the 
estate of Wm. Timothy Humphries. The 
trustee's report was favourable. 

The application was granted. 



149 



[ 



Mr. Shlppud applied for the rehabilitation of 
thcMtoteof John Abraham Meyer and Wm. 
HndMB Meyer. There was nothing unfarour- 
ible ia the trostee^s reports 

The application was granted. 



PROYIBIONAL BOLL. 



HAND AND 0THEB8 Y. 8IMRNH0FF. 

Mr. Watermeyer applied for the final adiudi- 
eatum of the defendant's estate. 
The application was granted. 



BAILET y. YIVIKB. 



Mr. Tredgold applied for provisional sentence 
for MOO end interest from September 1, 1894, 
«a two mortgage bonds. 

Praridonal eentenoe, property executable. 



HAXWKLL AND OTHRBS Y. NIEFDT. 

Mr. Tredgold applied for the final adjudica- 
tion of the defendant's estate as insolvent. 
The application was granted. 



BADSTHOBST Y. BLOSM AND ANOTHEB. 

Mr. Cloae applied for provsional sentence upon 
a prominory note for £64, lees £4 paid on 
aeooQBt 

The application was granted. 



AnOCAV BANKIHO OOBPOBATION Y. YAN 
BBOSMBaEN. 

Mr. Watermeyer applied for the final adjudi- 
cation of the defendant's estate. 
The application was granted. 



OOLONIAIi OBPHAN OHAHBBB Y. BB8TBB. 

Mr. Molteno applied for provisional judgment 
upon two mortgage bonds of £600 and £200, and 
that the property especially hypothecated be 
(Mared executable. 

Granted. 



ZOEE Y. O. B. ABNOLD. 



Mr. Tredgold applied for provisional judg- 
ment upon a mortgage bond for £800, lees £40 
paid on account, and that the property ppecially 
hypothecated be declared executable. 

Oranted. 



m KAfllKB Y. OBOBNBWALD'S BXBCUTOB. 

Mr, Oiddy applied for an order calling upon 
difendant to file an account in the estate. 
The usual order was granted. 



THB B.A. MX7TUAL INBUBANCB OOHPANT Y. 

UANNIZ. 

Mr. Close applied for provisional sentence 
upon a mortgage .bond for £660, and asked that 
the property specially hypothecated be declared 
executable. 

Granted. 



THE 8.A. MUTUAL Y. PAUL BOBIOH. 

Mr. Close made a similar application upon a 
mortgage bond for £700, and asked that the 
property specially hypothecated be declared 
executable. 

Granted. 



EATON, BOBINB, AND 0THBB8 Y. J. A. OILLIBBa. 

Mr. Buchanan applied for judgment for 
£07 9s. 9d., for goods sold and delivered, with 
costs. 

The application was granted. 



MOBOENBOOD Y. MOBGENBOOD. 

Mr. Currey applied for a rule niH requiring 
applicant's husband to show cause why she shall 
not be admitted to sue him in forma pauperis 
in an action for divorce by reason of his alleged 
adultery. 

The order was granted, and made returaable 
on the 19th instant. 



MABTBB Y. LOUW'B EXBOUTBIX. 

AdmiuiBtratioii accouut — Ordinance 104 — 
Exteusiou — Costs. 

Where an executrix, who had been in poeeee* 
eion of an estate for five yearn without 
filing a final account, h&d been summoned 
by the Master under Ordinance 104, and 
in answer to the summons alleged iuter ab'a 
that it was impossible for her to file the 
aecouni until certain of the heirs had paid 
in moneys due by them to the estate, the 
Court, under the special circumstances of 
the case, granted the executrix an extension 
of four months within which to file the 
account, but ordered her to pay the costs of 
the application . 



In this case the defendant was summoned 
to show cause why she had not lodged with 
the Master a full and true account, together 
with all vouchers and documents appertaining 
thereto, of the whole administration and dis- 
tribution of the estate of the late Nicholas 
Solomon Louw in terms of Ordinance No. 104. 



150 



The defdndant filed aa affidavit in which she 
alleged that pursaant to the provisions of her 
huBband's testament she caused the movable 
property to be disposed of, and framed and 
filed an account thereof, which showed a 
deficiency of £128 8b. 6d. to be made up out 
of the landed property when realised. 

That in terms of the will she remained in 
occupation of the land referred to therein and 
continued to use the usufruct and rents arising 
therefrom for the maintenance of herself and 
family. 

That there were living, the issue of the 
marriage with her late husband, three sons, 
the eldest being already of age. the second 
will attain his majority in May, 1896, and the 
third is a minor of sixteen years of age there 
being also five daughters, of whom two are 
married, and three still minors aged 18, 11, 
and 6 years respectively. 

That according to the construction put upon 
the will of her late husband, which she took 
to be that of the first dying only, it was her 
intention to take transfer into her own name 
of the one half of the landed property and 
upon payment by her sons of their respective 
shares of £400 for the benefit of her late 
husband's estate she was willing to give transfer 
to them. That all the three sons were living 
on the farm, that the two eldest were working 
on their own account, and that the youngest 
was living with his brothers and at school there. 

That unless and until the sons pay in their 
shares of the £400, which according to her 
reading of the will has to be invested by her 
for the maintenance of the minors and support 
of her daughters until after her death, she had 
been advised that she would not be justified 
in passing transfer to them seeing that their 
shares could not be mortgaged for the amounts 
due therefor to the estate. 

That she was informed that under the circum- 
stances it was impossible for her to frame and 
file a satisfactory account and that no succes- 
sion duty was as yet claimable by the Master. 

That should the Court hold that she was 
bound to file an account of the proposed division 
of the landed property, then she asked for 
sufficient time to enable her to come to some 
arrangement with her sons, and that she would 
be pleased to adopt any suggestions that the 
Court might seem fit to make. 

Mr. Qiddy for the Master. 

Mr. Searle, Q C, for the defendant 

The Chief Justice: In the absence of thd 
heirs interested in the will, we think that more 
than the usual time ou^ht to be given to the 
respondent to enable her to decide as to what 
she intends to do, Perhaps the better Qours^ 



would be to arrange and agree upon a special 
case, to which all the heirs might be parties, 
and application might be made to the Court to 
appoint a curator ad Htem to the minora, 
because the defendant could not well represent 
her children in any action of this kind. Instead, 
therefore, of the usual time being granted, we 
shall make an order calling upon the defendant 
to file accounts within four months. 

Mr. Searle: The costs to come out of the 
estate? 

The Chief Justice: Ko. Five years have 
elapsed, and she has remarried, but has not filed 
accounts with the Master. I do not think it is 
a case where the costs should come out of the 
estate. 

Their lordships concurred. 

[Government Attorneys, Messrs. J. & H. 
Reid &. Nephew; Defendant's Attomeya, 
Messrs. Van Zyl Sc Buissinn^.] 



Sx parte Lloyd. 
Be LLOYD'S Will. 



18d5. 



iMay lat. 

Will— Ordinance No 15 of 1845--Siguature 
of testator. 

An instrumetU purporting to he the lojft will of 
L. was written on more leaves than one and 
was signed at the foot by L. and witnesses 
but WIS signed only by the witnesses and not 
by \j. on the first leaf. 

The contents of the second leaf would he 
unintellegible without the first leaf. 

Held that, as the first leaf was an integral 
part of the instrument^ the second leaf could 
not be admitted to probate without the first, 
and that, eu the first leaf teas not signed 
by the testator, the instrument could not be 
accepted as a whole. 



This was the petition of Maria Lloyd, widow 
of the late Henry Thomas Lloyd, and of six 
major children of the marriage. The petitioner 
was married in community in the year 1865 to 
her husband, who died on 7th February, 1896. 

On the 9th October, 1888, Lloyd executed 
what he intended to be his last will and 
testament, under which he gave his wife a life 
interest in his estate. 

The will was written on four pages of two 
sheets of paper and was signed at the end and 
properly attested by two witnesses, who further 
signed their names by way of attestation qn the 
first page of the will, but on which page th^ 
deceased did not sign his name, 



151 



The Mftster declined, to recognise the docu- 
ment as a will under the Ordinance, and refused 
to mwd letters of administration to the persons 

nimed aa execntors. 
The petitioners and one child of a previoos 

muriage agreed amon|<st themselves to adhere 

to their father^s wisties as contained in the 

doeatnent executed by liim. 
The prayer was tliat the Court would recoff- 

aiee the docxunent as a legal will or as a 

phTiVeged will, and authorise the issue of letters 

ti adrnmistration by the Master to the persons 

aamed as execators. 
Thfi BeT. Mr. Ritchie, minister in charge of 

the Congregational Church in Queen's Town. 

filed an affidavit in which he declared that he 

haew Lloyd, who was a member of his oongre- 

gatioo, that he attended him during his illness, 

that he had had frequent conversations with 

hira with regard to his affairs, and that about 

six days before his death he referred to his 

will and testament, his words being as near as 

possible as follow : Being asked whether he had 

made a will for the settlement of his affairs in the 

event of his death, he answered 

**Te& my will was made out some time back 

by a legal firm in King Wil Mam's Town, so 

that everything will be straight and plain in 

r e g a rd to the disposal of whatever I have to 

leave to my family. The will provides that 

Mrs. Ltloyd shall have the use of the whole of 

my means during her lifetime, and after her 

d»th I have provided that the property shall 

fEO to the unmarried daughters of our marriage, 

my concern being to secure them against the 

possibility of their being east upon the world 

nnprovided for when their home may be broken 

up by the death of their mother. 

''The sons of both marriages can look after 

tiieir own interests now and are in no want 

of pecimiaiy help from me. My only concern 

» to save the mother and the unmarried girls 

from, a life ef hardship after I'm gone. And 

that is bow I have arranged matters in my 

wilL That is all right, and I have no anxiety 

on my mind in regard to that. The comfort 

of the mother and her daughters is secured 

and that is all I am ooncemod about." 
Mr. Benjamin was heard in support of the 

application and contended that the declaration 
made to Mr. Ritchie amounted to a nuncu- 
pative will and that the document should be 
recognised as such. He cited Me Parker (2S 

UJ. Prob. 91.) 
'Rwen if the whole document could not be 

admitted as a will, the part which had been 

executed io terms of the Ordinance, namely 

the appointment of the executors, might. See 

SeAnttee (L.R. Frob. (1893), p. 288.) 

Tie Comi refased the application, 



The Chief Justice said: The Court is always 
desirous to give effect to what it conceives to 
be the last wishes of deceased persons, but it 
can only do so in accordance with the pro- 
visions of the law relating to the execution of 
wills. The instrument now in question was 
written upon more leaves than one and, under 
the 3rd section of Ordinance 15 of 1845, it was 
neceFsary that the testator and the witnesses 
should sign their names upon at least one side 
of every leaf. Unfortunately the testator did 
not sign his name on the first leaf although 
he did so on the la^t at the foot of the instru- 
ment. If the testator had himself wiitten 
the will there might have been some eupport 
for the contention that the instrument is a 
privileged will, but it is admitted that the writ- 
ing was done by someone else. The applicant 
further contends that at all events the leaf 
which contain!^ the signatures of the deceased 
and the witnesses ought to be accepted by the 
Master as the testator's last will, and he relies 
upon the Bnglish case. In re Aiutee (L.K. 
P.O. (1893) p. 283) in support of his contention. 
That was, in many respects, a different case 
from the present. The part admitted to probate 
was the first page which had been duly signed 
by the testatrix only. The disposing parts of 
the will appeared on the first page and were 
not affected by the few concluding words of 
a sentence appearing on the second page. In 
the present case the second part of the will, 
which the Court is asked to accept, would be 
quite unintelligible without the first, which 
is an integral portion of the will. By giving 
effect to the second part, without the first, the 
Court might stultify the wishes of the testator, 
and thus do the very mischief which the present 
application seeks to prevent. Even if the 
Bnglish cases cited were in point they would 
not afford any guidance to the Court seeing 
that the English law relating to the execution 
of wills has been greatly altered since the 
passing of our Ordinance. The provisions of 
that Ordinance do not admit of the course 
suggested and the applicatian must therefore 
be refused but the costs may come out of the 

estate. 

Mr. Justice Upington concurred. 

[A()plicant's Attorneys, Messrs. Van Zyl & 
Buis6inn(^.] 

OPPBL AND OTHBRB V. LB BOUX ) 1895. 

AND OTHBUa {May 1st. 

Interdict — Watercourse — Remedy by action. 

The Court refused to grant an interdict 
restraining the respondents from constructing 
a dam and watercourse^ leaving the applicant^ 
to their remedy hy action. 



152 



This was an application on notice to the 
respondent, that the}' would be required to show 
cause why they should not be restrained fi*om 
making a dam in the Oliphant's River (and a 
watercourse leading therefrom) between dam 
"D "and the'Nieuwe Sloot zijn dam," from 
which dams water is conveyed on to the farm 
Roodeheuvel. situate in the district of Oudts- 
hoom, and why they should not pay the costs of 
the application. 

The faot<s are these : 

The farm Roodeheuvel is irrigated partly 
from the Kamnacie River and partly by the 
Oliphant's River, being riparian to both rivers. 

In 1879, the then proprietors agreed to a 
sub-division of the land and water rights, and 
placed all matters in dispute in the hands of 
arbitrators, who published their award in writing 
on 12th January, 1880, the award being there- 
after made a rule of Court. 

Up to the present sub-divisional transfers 
have not been passed. 

At the time of the making ot the award 
there was in existence only one dam in the 
Oliphant's River from which water was 
conveyed to the farm Roodeheuvel. This dam 
is marked " Dam D " on the general plan of 
the sub-division. 

It was prpvided inter alia in the award as 
follows : 

Twenthly, We further order, adjudge^ 
and awa/rd that the proprietors shall have the 
right to take out watercourses over each other*s 
ground for irrigating purposes below the present 
damSt as tnarked on the annexed plan. 

In the year 1881, the then proprietors, of 
whom the respondents, both of Roodeheuvel, 
were parties, agreed to lay a dam lower down in 
the Oliphant's River than " Dam D," the dam 
and watercourse leading thereout were made, 
and have been in use ever since and are known as 
the "Nieuwe 8k)ot sijn Dam." The water 
flowing in this watercourse was distributed in 
accordance with each owner's share in the land 
under this watercourse, and they have been in 
the enjoyment of their rights up to the present 
time. ** Dam D " is situated on an upper farm, 
namely on the farm Van Wyk's Kraal, and has 
been in existence from time immemorial. 

" Nieuwe Sloot zijn Dam " is situate on the 
farm Roodeheuvel. 

The respondents have obtained permission 
from the proprietors of the farm Baakens Eloof 
to lay a dam in their property and convey the 
water to the farm Roodeheuvel. This dam will 
be between " Dam D " and the "Nieuwe Sloot 
aijn Dam." 

" Dam D " is distant from the « Nieuwe Sloot 
jsijn Dam " abo^t 3,000 yards. The new dam 



about to be constructed will be about equi- 
distant between the other two dams. 

The next farm to Roodeheuvel (Oliphant's 
River side of Roodeheuvel) is StoUsvlakte, then 
Paakens Kloof, then Van Wyk's Kraal. 

The petitioners alleged in effect that the 
coni^tniction of the proposed dam would inter- 
fere with the remaining proprietors* present 
rights, and they prayed for an interdict re- 
straining the respondents from construotini^ 
the dam in question. 

The respondents alleged int^r alia that under 
the provisions of the award a dam and water- 
course known as the ' Nieuwe Sloot sijn Dam ** 
were construoted by suoh of the proprietors of 
the farm Roodeheuvel as were interested to 
suoh dam and wateroourse, and that the water 
out of the said dam was distributed amongrt 
suoh proprietors in proportion to the land which 
each one had under suoh watercourse. 

That the lands irrigated by the " Nieuwe Sloot 
Bijn Dam," whioh is lower than ''Dam D,'* 
were already at the time of its eonstruotion 
under irrigation out of the servitude water- 
course **D" and ^ere entitled, as well as the 
lands which did not come under this new water- 
course, to water in proportion to the extent 
under the said watercourse *'D" owned by 
each proprietor, and the said new watercourse 
was oonstjoioted simply to improve the supply 
of water on such lands, and the ^'Nieuwe 
Sloot sijn Dam" did not bring any more 
or further lands under irrigation, and irri- 
gated only the lower portion of the lands of 
the farm Roodeheuvel, but the watercourse 
leading therefrom has been so oonstnicted that 
the proprietors served by both dams, with one 
or two exceptions, can use the water of both 
dams in either of the watercourses. 

That the greater part of the lands owned by 
the respondents and by other proprietors of 
Roodeheuvel were not brought under irrigation 
out of the " Nieuwe Sloot zijn Dam," and that 
none of the applicants own land above the 
** Nieuwe Sloot sijn Dam.** The respondents 
submitted that as against the applicants, as 
proprietor.4 of land under the ''Nieuwe Blooi 
zijn Dam," they were entitled to a reasonable 
share of the water for irrigating their lands 
on the farm Roodeheuvel above the *' Nieuwe 
Sloot zijn Dam " so long as they took the 
water below " Dam D,** and that this was the 
meaning and effect and the provisions of the 
award. 

The respondents finally alleged that it was 
not their intention to divert more than a fair 
and reasonable share of the water for the 
purpose of irrigating their lands above the 
"Nieuwe Sloot zijn Dam," regard being had 



15^ 



to the extent tHereof under the proposed new 
vttertooree, and to the extent of the laxids 
latethe ''Kienvre Sloot »ijn Dam." 

Mr. Searle, Q.G., for tlie applicants. 

Mr. Juta, Q.C., for tlie respondents. 

The appUoation ^w&s refused wfth costs. 

The Chief Jostice said: The Court is of 
o|Hmoii Uiat the present application most be 
itioeedvi^ ooets, ^with leave to the applicants 

tOT«coverthe costs in any action which they 

may fabaequently be advised to institute 

•S^inst the Tsspondents. 
^^pipUcanV«; Attorneys. Messrs. Fairbridge, 

Aidcxne & Lawton ; Respondents' Attorneys, 
Hestn. Tredgold, Mclntyre & Bissetl 



HAYWARD V. HAYWARD. JMa^y^ist. 

rhic was an action for restitution of conjugal 
ligbta, failing which for divorce, instituted by 
Mm C. F. Hayward against her husband on the 
gKwukdB of his malicious desertion. 

The declaration alleged that the parties were 
xnanied on 21st July, 1890, and that the deser- 
tion took place in 1893. 

Mr. Tredgold appeared for the plaintiff. 
The defendant was in default. 
NcKman Lacy, a clerk in charge of the 
Marriage Register at the Colonial Office, said 
thmt tlie marriage between Charles M. Hayward 
Carolina Frederics Heydenrych took place 
Dutch Reformed Church, Cape Town, on 
Jalj 21, 1S90. 

Caroline Frederica Hayward. the plaintiff, 
■aid that her maiden name was Heydenrych. 
She was married to Charles M. Hayward at 
the Dutch Reformed Church, Cape Town, on 
Jaly21. 189a Her husband lived with her for 
three years, during which time they lived happily. 
Respondent's occupation was that of an hotel- 
keeper. Applicant was nineteen years of age 
at the time of her marriage. Previous to her 
xsarria^ she tried to find out where her hus- 
hand came from, and she understood 
that he came from Manchester, England. 
She could get no information from him 
as to his relatives or his past life. To her 
knewledge he never received letters from any* 
body. One child, which had since died, was 
bom of the marriage. The parties were married 
in oommnnity of property. When 
he left her it was not her fault, 
hot because he had got badly into debt, and 
bad forged her father'a name. She did not 
Icnow where he had gone, and he did not a^k 
iMf to go away with him. He left by one of the 
JKogllsh mail boats — she believed the Roslin 
Cuih, Since he had left she had had to keep 



the home together by dressmaking. Since he 
had left she had heard nothing of him. There 
was no property. She was willing to live with 
her husband if he returned. 

The Court granted a decree of restitution of 
conjugal rights, with costs, defendant to receive 
plaintiff on or before July 16, failing which de- 
fendant to show cause ou Ist August why a 
decree of divorce with costs should not be 
granted. 



HAUFTFLBISCH V. HA.UFTFLEI8CH. 

Mr. Benjamin applied for an order to make 
absolute the rule nUi for dissolution of the 
marriage subsisting between the parties by 
reason of the respondent's failure to obey the 
order for restitution of his coniugal rights, and 
for an order that the custody of the minor child 
of the marriage be given to the father, and that 
Mr. A. P. de Villiers be appointed receiver for 
the division of the joint estate. 

The application was granted. 



THE PETITION OF THE MUNICIPALITY 07 
BUTHBKLAND. 

Mr. Shell applied to make absolute the ruU 
am issued under the Titles R^stration and 
District Lands Act for the attachment and sale 
in execution for the payment of the rates and 
taxes due thereon of certain lots of land in the 
village of Sutherland. 

The rule was made absolute. 



IN THE MATTER OF THE MINOR WILLIAM G. 

8IEBBRHAGEN. 

Mr. Maskew applied for the sanction of the 
Court for the sale to the said minor of certain 
farms situated in t'ue district of Uichmond, from 
the estate of his parents, and for the appoint- 
ment of a guardian to assist him in passing the 
necessary bond to enable him to obtain transfer 
in terms of the said deed of sale, and that Mr. 
A. P. de Villiers be appointed curator. 

The application was granted. 



NEL v. THE RESIDENT MAGIBTRATB f 1896. 

OF WORCESTER. ( May 1st. 

Commitnieut to custody — Bail — VVurrant 
A Magistrate^ being satisfied from the examin- 
ation of an insolvent that there was sufficient 
prima-facie evidence of his having committed 
culpable insolvency, in ths interests of 
justice and with a view to further pro- 
ceedingSy ordered the insolvent to find bail 
without having previously issued a warrant 
for his apprehension. 



154 



A n appV cation hy the insolvent to have the 

proceedings set aside as being illegal was 

refused with costs, thi: applicant being in no 

way prejudiced hy the conduct of the 

Magistrate, 



This matter came before the Court on notice 
to the reppondent that he would he required to 
ehovv cause why the coin mi tin on t to custody by 
him of the applicant on the 26th February laht 
should not be declared to be illegal and be set 
aside or discharged, and also why the bail bond 
entered into by the applicant and by Messrs. 
Joubert and Nel, senior, in order to obtain the 
release from custody of the applicant should 
not be ordered to be cancelled, and why the 
respondent should not be adjudged to personally 
pay the co*>t8 attending the present application. 

The following are the facts as deposed to 
by the applicant in his affidavit, the material 
allegations of which are as follow : 

1 . I reside in Worcester. 

2. On my application my estate was recently 
placed under sequestration by the Honourable 
the Supreme Court. 

3. The second meeting of creditors in my estate 
was held at Worcester on the 26th February, 
1895, before the Resident Magistrate of 
Worcester, the respondent above named. 

4. At that meeting I appeared, and I was 
sworn and examined touching my affairs. I 
answered all questions put to me. 

5. My examination was mainly conducted 
by Mr. Chas. Home, jun., of Worcester, an 
attorney -at-law, who appeared at the meeting 
on behalf of one of my creditors. 

6. At the close of my examination the said 
Charles Home remarked that he thought 
mine was a case in which the Magistrate 
should demand bail and, that I should be dealt 
with similarly to Mr. Du Plessis, also an insol- 
vent, who was committed about a fortnight 
before for culpable insolvency. 

7. The respondent thereupon stated that he 
was of the same opinioD, and addressing me 
he said " You will be kept in custody." 

8. The respondent thereafter remarked that 
I could be released from custody provided I 
furnished similar bail as Mr. Du Plessis, viz., 
myself in £100 and two sureties in £60 each. 

9. Af t«r this the Chief Constable, one Thacker, 
who was present all the time, addressing me 
remarked, " Mr. Nel, you cinnot leave the Court ; 
you are in my custody." 

10. Under these circumstances I com muni- 
oated through Mr. J. C. Winterbach with my 
father Mr, W. A. Nel, senior, and Mr. J. J. 



Joubert, of Worcester, and was released from 
custody on their signing with me the bail bond, 
whereof I attach a copy. 

11. No warrant was issued or granted by 
the respondent authorising the pioceedings 
aforesaid, which were conducted on his verbal 
order in manner aforesaid. 

12. On the 27th February, 1896, in company 
of the said Mr. J. J. Joubert I proceeded to the 
office of the respondent and requested to be 
informed upon what warrant or authority I 
had been so dealt with, when he replied 
that he had not committed me to prison under 
any warrant, but acted under instructions 
from the Attorney -Genei-al. He further abK) 
denied having committed me to prison or given 
me in charge. 

13. The respondent then called the Chief 
Constable to him and in our presence asked him 
whether he, the respondent, had given me into 
his charge, whereupon the Chief Constable 
replied. " Yes sir, you did, and if Nel had not 
found bail I would have taken him to gaol.'* 

14. I respectfully submit that I have been 
dealt with in an illegal manner by the reepon- 
dent, and that I am entitled to have the said 
proceedings set aside. 

The respondent in his answering affidavit 
alleged inter alia, that at the insolvents second 
meeting he was examined on oath and hiB 
evidence reduced to w^riting, and that having 
the applicant s own sworn statement before him 
(respondent), which showed a prinia-facie case 
of culpable insolvency, he deemed it to be in the 
interests of justice to demand bail from the 
applicant with a view to further proceedings 
being taken against him, and that he accord- 
ingly intimated to the applicant that he would 
be required to find bail, himself in £100 and two 
good and sufficient sureties each in £60, and 
that such bail was furnished shortly after to 
the respondent's satisfaction. 

That on the 23rd March last a preliminary 
examination for culpable insolvency was 
commenced against the applicant, and that the 
case was remanded until the 25th April for 
further evidence. 

In a replying affidavit the applicant stated 
that his grievance was that without a formal 
charge made, and without any warrant issued, 
he was committed to custody by order of the 
respondent, and was compelled to furnish a bail 
bond of himself and two sureties before he 
could obtain his liberty, and that it was a fact 
that up to the present no warrant of any kind 
had been issued against him by the respondent. 
The bail bond entered into by the applicant 
and his sureties was the ordinary recognizance 
under Ordinance 40, section 55. 



156 



Mt. Qraham, for the applicant: It is sub- 
mitted that the proceedings were irregular, as 
Ibc Magistrat-e should have iBsued a warraut 
before demanding hail. Every prisoner is 
entitled to a warrant or summons setting forth 
tkeofLence with which he is charged Regitia v. 
Cooptr CBuch: 1870 p., 154.) 

Xgalnthe Magistrate should have proceeded 
under A.ct Stt of 1884, section 7, and submitted 
the evidence to the Attorney- General if there 
were reasonble grounds for suspecting that 
the respondent was guilty of culpable 
insolvency. His action in arresting the 
applicant without complying with the 
section was illegal, and the proceedings and 
bond should now be set aside. 

Mr. 8chreiner, Q.C., A.G. : Before the passing 
of Act 38 of 1884 a magistrate had powcr to 
arrest a man suspected on reasonable grounds 
of having committed culpable insolvency. The 
effect of section 7 is not to limit that power 
but rather to insure a prosecution if there are 
reasonable grounds. 

The applicant suffered no prejudice by the 
kindly act of the Magistrate in not issuing a 
warrant as he might have done, and it docs not 
lie in the applicant's mouth to take a technical 
exception that bail was required before the 
issue of a warrant. 

Mr. Graham, in reply : The offence with 
which the applicant was charged is a statutory 
offence and the Magistrate should have had 
some deposition or sworn testimony before him 
to justify his conduct. Ordinance 73, section I ] , 
does not apply to proceedings like the pre- 
sent. 
The application was refused with costs. 
The Chief Justice said : The proper course on 
the part of the Magistrate would have been 
to have issued a warrant for the arrest of this 
man before ordering bail to be found. No pos- 
sible prejudice could have been done to the man 
because he was asked to give bail without being 
arrested on a warranto The indignity would have 
been veiy much greater if the warrant had first 
been issued and he had been arrested under it. 
The case goes to show that it is far better for 
magistratefl to follow the procedure provided by 
law than to act for the benefit of the person inter- 
ested, as they may afterwards be brought to 
book. I am of opinion that the application 
most be reiused. 

Mr. Justice Buchanan conourred. mainly on 
the ground that the applicant was not in any 
way prejudiced. 
Mr. Justice Upington concurred. 
The Attorney-General applied for costs. 
The Chief Justice: I wish to say nothing 
about costs. 



Mr. Justice Buchanan : In criminal matters 
as a nile costs are not given ; but in this case, as 
it is a personal matter }>etween the applicant 
and the Magistrate, and as the applicant asks 
for costfl and has failed in his application, I 
think that, under the circumstances, it is very 
reasonable that he should pay the costs. 

[Applicant's Attorney, G. Montgomary- 
Walker; Respondent's Attorney, C. C. de 
Viliiers.] 



KOCH V. ZACfKON AND THK R.M. OFf 1895. 

VAN BHYN'S DORP. ( May IsK 

Magihtratc's Ctmrt — Iteheariiig of case. 

In an application on behalf of the plaintiffy 
against whom judgment had been given by 
a Resident Magistrate's Courts for an order 
to compel the Mayistrate to re-open the case 
on the ground that he ha:l refused to hear 
certain witnesses produced on behalf of the 
plaintiff, 

Held, that the plaintiff ought to have tendered 
his witnesses for examinalion in the Court 
below, and requested the Magistrate to make 
a note of such tender, and that in the absence 
of clear proof of the Magistrate's refusal 
to take their evidence the apjylication ought 
not to be granted. 

This was an application on the following 
notice of motion addressed to the respondents : 

'Sirs, — Take notice that application will be 
made to this Honourable Court by motion on 
the i2th day of April next at ten o'clock in the 
forenoon, or so soon thereafter as counsel can 
be heard, at which time you are required to 
show cause if any : 

(1) Why an order in the nature of a man- 
damus shall not be granted requiring you the 
said Magistrate of Van Khyn's Dorp to re-open 
the hearing of a certain interpleader suit 
wherein the above-named applicant was plain- 
tiff and the above-named respondent, Samuel 
Zackon, was defendant, which suit was in part 
heard before you, the said K.M., on the 21st 
day of January, 1895, and in which you delivered 
judgment against the said plaintiff before his, 
the plaintiff's case, was closed and further 
requiring you, the aforesaid R.M., to allow 
the plaintiff to adduce the evidence of the 
witnesses who on the aforesaid day were present 
to testify on his behalf. 

Or in the alternative: 

Why the applicant shall not during the 
ensuing term of this Honourable Court be per- 
mitted to prosecute his appeal against the 



1^6 



aforesaid judgment notwithstanding that the 
time allowed him to do bo shall hare elapsed. 

(2) Why you or the one or the other of you 
shall not be ordered to pay the costs of this 
application. 

(3) Why such further or other relief in the 
premises shall not be granted to the applicant 
as shall to this Honourable Court seem meet. 

The present proceedings arose out of a 
certain interpleader suit heard before the R.M. 
of Van Rhyn*s Dorp on the 21st January, 1895, 
and in which Zackon claimed as aii^ainst Koch, 
the plaintiff, that an ox attached by him in 
execution of a judgment obtained by him 
against one Koopman should be declared 
executable. 

Koch's case was that the ox had been sold 
to him by Koopman. his shepherd, notwith- 
standing the fact that the ox still bore Koop- 
man's mark. 

According to the affidavits of the applicant 
and his witnesses, after the applicant and his 
brother had given evidence the R.M., interrupted 
the proceedings and said that he considered 
that the plaintiff (Koch) had been very careless 
in not marking the ox with hif. own mark, that 
he thought that the plaintiff should be made 
to suffer for his carelessness, that he wished 
it to be a lesson to all farmers, and that there- 
fore he wonld declare the ox executable. 

The Magistrate in his answering affidavit 
denied the above statement, and alleged that 
when the evidence of Koch and his brother had 
been given, he asked the claimant's agent if he 
had any more witnesses, and that he replied in 
effect that he did not think it necessary as the 
evidence given was, in his opinion, sufficiently 
satisfactory and prayed for judgment with 
costs. 

That he (the K.M.) thereupon proceeded to 
deliver judgment and declared the ox executable. 

That not at any time during the hearing of 
the case did he (the R.M.) interrupt the pro* 
eeedings as stated by the applicant 

Several witnesses who were present in court 
corroborated the Magistrate's version of what 
took place. 

It did not appear from the record that the 
applicant tendered any further evidence after 
he and his brother had given their evidence. 

Mr. Graham for the applicant. 

Mr. Jut a, Q.C., for the respondent. 

The application was refused with costs. 

The Chief Justice said : The Court is asked 
to establish a dangerous precedent Parties to 
suits, as well as their agents or attorneys, are 
frequently much disappointed with the result. 
To grant this application would be to open a 
door to disappointed litigants for re-opening 



cases which they have lost through their own 
negligence. They might neglect or even be 
unable, to pro'Iuce witnesses in support of their 
case in the Magistrate's Court and, when they 
fiod that the decision is against them, turn upon 
that Court by means of an application to this 
Court for a rc-hcaring on the ground that the 
lower Court had refused to hear all thtir 
witnesses. Of course, if a magistrate refuses 
to perform his duty, there is a means of com- 
pelling him to do so, but the evidence of 
his refusal must be clear and con- 
clusive. In the present case the evidence 
on the point is most contradictory, and 
not only so. but the applicant admits that he 
did not formally tender any witnesses for 
examination or request the Magistrate to note 
his objection to the further hearing without 
examining such witnesses. It appears also 
that after judgment had been given, he noted 
an appeal against the iudgment If he had 
intended to take advantage of the Magistrate's 
alleged illegal refusal to hear more evidence he 
would surely have raised his objection there 
and then and not have noted an appeal on the 
merits of the case. In my opinion there would 
be no justification in the present case, on the 
ground stated by the applicant to order the 
Magistrate to reopen the case, and the applica- 
tion must be refused with costs. 

Their lordships concurred. 

[Applicant's Attorney, W. E. Moore ; Respon- 
dents' Attorney, G. Montgomery- Walker.] 



DAY V. DAY. 

Mr. McLachlan applied that the dates when 
the order of the Court in this case were made re- 
turnable might be extended from May 1 and 
May 16 to August 1 and August 16. 

The Court granted the application. 



SUPREME COURT. 



[Before Mr. Justice Buchanan and Mr. Joatioe 
Upinoton, K.C. M.G.J 



IN THE INSOLVENT ESTATE OF f 1895. 

ANDBIBS J. P. NBL. (May 2nd. 

Mr. Buchanan moved for the appointment of 
a provisional trustee or trustees for the adminis- 
tration of the said estate, no election having 
been arrived at at the second meeting of 
creditors. 



L 



157 



IbeCofort granted 
P.FitigeTald and W. J. 
totiquidatetlie estate. 



order appointing M. 
Orsmond joint truBtees 



tM THK Varr A.TB 09 THB L.ATB JOHN W. HOOPEB 

Vr. KoHeno moTed for an order removing 

ThoiBM B. Sheard from his trust m one of the 

tsKOitoTs of the said e«tate, by reason of his 

fiaappcarance from his duties, and the subee- 

qaeaiaeqneBtratioik of his estate. 
Cite granted. 



IH TSB MATTKR OF THB MINOR JAN A. B08MAN 

Mr. Close moved for authority to the mother 
and natural guardian of the said minor to raise 
a sum of money en mortgage of certain farm 
known as Klein Doom Pan, in the district of 
Prieska, for the purpose of buying stock for 
farming and discharging debts incurred. 

Order granted. 



KLAIBA y. KLAIBA. 

Mr. Qraham moved for an order to make 
absolute the rule nUi for dissolution of the 
marriage subsisting between the parties by 
reeaon of the respondent's failure to obey the 
order for restitution to his wife of her conjugal 



Order granted. 



Ex parte hichbll. \ 1896. 
Be BLYTH's WILL. { May 2Qd. 

Executor and trui'tte — Removal. 
Where oa executor tentamentary and trustee 
applied to be relieved of his duties and 
trusts, OH the groun'h that owing to ill- 
health his medical adoisers hcul recommen<1ed 
him to visit Europe , the Court relieved him 
from his office of trustee 



This was the petition of Lewis Loyd Miohellt 
ooe of the executors and trustees appointed by 
the will of the late Captain Matthew Smith 
Blyth, who died on the 16th July. 18^9. 

The will was duly proved and letters of 
administration were granted to the petitioner 
and to Blisabeth Cornelia Blyth, widow of the 
deceased. 

Mrs» Bl3rth has for some time past been 
residing in England, and the petitioner has been 
managing the affairs of the estate on his own 
behalf as such executor, and under a power of 
attorney granted to him by his co-executrix. 

The petitioner alleged that he had lately been 
•dvised to leave the Colony on a visit to Europe 



on account of ill-health, and acting under 
medical advice he was desirous of being relieved 
of his duties and trusts. 

That he had duly made up previous accounts 
of the estate aud the same had been submitted 
to and approved of by his co-executrix. The 
accounts up to Slst December, 1894, had also 
been made up and submitted, but the aiisence of 
his co-executrix from the Colony had prevented 
the receipt of a reply from her on the subject. 

1'hat the S.A. Association were a fit and 
proper body to be appointed as executor and 
trustee in the room of the petitioner, and the 
co-executrix was willing to agree to their 
appointment. 

That the petitioner had in the meantime 
during his anticipated absence from the Colony 
and pending the appointment of a fresh 
executor and trustee in his place and stead 
appointed the S.A. Association to act for and 
on his behalf. 

The prayer was that the petitioner might be 
relieved and discharged from his duties from 
Slst December, 1894, and the 8. A. Association 
appointed in his place, or that the Master might 
be authorised to take the necessary steps for 
appointing another executor and trustee. 

The co-executrix consented to the petitioner 
being relieved of his trusts and to the S.A. 
Association being substituted in his place. 

Mr. Watermeyer for the petitioner. 

The Court relieved the petitioner from his 
oilice of trustee and appointed the B.A. Asso- 
ciation trustees in his place. 

The petitioner to continue executor and to be 
liable to the estate for administration up to the 
date of his release f i om trusteeship. 

[Petitioner's Attorneys, Messrs. Fairbridge, 
Arderne & Lawton.] 



CBB8SET AND OTHERS Y. HAAB- 
HOFF'8 TRUSTEE. 



\ 1896. 

}May 2nd. 
loBolveucy — Proof of debt — Withdrawal 

without order of Court — Costs. 
A creditor, who has proved a claim in on 
insolvent estate, may withdraw the claim 
without an order of Court, but he remains 
liable for his share of costs incurred bona 
fide by the trustee prior to the date of with- 
drawal. 



This was an application on notice to the 
respondent that he would be required to show 
cause: 

(a) Why the names of the applicants should 
not be removed from the contribution account 
filed by him in HaarhoCs insolvent estate. 



158 



(J) Why he should not be ordered to pay the 
costs of the applicants in certain proceedings 
instituted by him against the applicants, requir- 
ing them to show cause why they should not 
proceed with certain objections taken by them 
to the account filed by the responden, 

(c) Why he should not be ordered to pay the 
costs of this application de bonh propriit. 

The facts as deposed to by the first-named 
applicant are as follows : The applicants were 
placed upon the list of contributories in the 
distribution account filed by the respondent in 
Haarhoff's insolvent estate. They objected to 
be placed on the list or in the account, or other- 
wise to be held liable to contribute to the defi- 
ciency in the estate by reason that they had 
given notice to the respondent of the with- 
drawal of their proofs of debt. 

On October 9, 1894, the applicant gave the 
respondent notice, on his own behalf and on 
behalf of the other applicant?, that their proofs 
of debt were withdra?ni, and that it wns after 
this notice had been given that the costs were 
incurred by the respondent which have led to a 
deficiency in the estate, and that nt the time of 
the withdrawal there were Fufliicient funds in 
the hands of the trustee to have paid all the 
costs of liquidation up to date. 

The applicants would have instituted proceed- 
ings to have had their names removed from the 
contribution account had they not thought that 
the more proper and convenient course would be 
for them to wait until called upon to make 
payment to the trustee of a share in the defi- 
ciency. The applicant alleged that it was at 
no time intimated to him that it was the inten- 
tion of the respondent to require the applicants 
to proceed formally with the objections of which 
notice had been given to the Master. 

The respondent in his answering aflidavit, 
alleged that at the meetings held in the estate 
he represented the majority of creditors, whose 
claims amounted to about £277 17s. 4d., the 
total claims of the applicants, proved by Cressey, 
amounting to £38 14s. 9d. 

That a sale in execution of the greater part of 
the assets of the estate was held by the acting 
'messenger of the Court on the day on which the 
schedules were presented to one of the judges of 
the Supreme Court, and when the telegram 
arrived announcing the acceptance of the sur- 
render, the applicants, R. Mortimer & Co., had 
been paid their pro rata share in the writ, but 
nobody else. The applicant Cressiy, who acted 
for Mortimer k Co., was ni«st of the time with 
and assisted the messenger in arriving at a dis- 
tribution. 

That OB the advice of counsel, which was taken 
on a rest lution of creditors, the respondent in 



his capacity proceeded against the messenger 
and obtained judgment. The messenger then 
surrendered his estate (valued at about £16), 
which was accepted. 

That as far back as July, 1894, counsel ad- 
vised that the estate should proceed against G. 
G. Frieslich (the Resident Magistrate), but in 
order to keep the case out of court time was 
given the Magistrate to come to an arrange- 
ment with creditors. He made no reply, and 
process was issued ; and it was only on the 9th 
October that the applicants withdrew their 
claims without assigning any reason. The re- 
spondent further alleged that he was advised 
that he could not take any notice of the appli- 
cants' letters, and that they should obtain an 
order of Court to have their claims (which were 
very small) expunged. 

That when he commenced the action against 
the Magistrate he was advised that no further 
resolution of creditors was necessary. 

The respondent finally alleged that in all the 
proceedings taken by him he had tried to do his 
duty to creditors, and in no instance had he 
acted without advice. 

Mr. Rose-Innea, Q.O., for} the applicanta 
There appears to have been no resolution of 
creditors authorising the trustee to bring t-he 
action against the Magistrate. But he had 
power to do so— see section 50, Ordinance 6 of 
1843. Wilson's Tntstees v. Wilson (4 JuU, 209)— 
and the creditors who oppose the action are 
still held responsible for its consequences. Van 
Heerden v. Ooosen's Trustees (4 Juta, 41). 

Under such circumstances the only course is 
to give notice withdrawing the proof of debt. 
Such notice must be sufficient or else the 
minority is at the mercy of the majority or of 
the trustee. 

There is nothing in the Ordinance to prevent 
the withdrawal, the 27th section says that the 
Court may admit or reject, but that means at 
instanrje bf an objecting party, not of a party 
who wishes to withdraw. It is clear from the 
^ffidavitrt that the applicants objected to the 
contribution account. There is no proceeding 
under the Ordinance for objecting to a contri- 
bution account, the UOth section only applies to 
the plan of distribution. 

Mr. Benjamin for the respondent: No section 
of the Ordinance justifies a creditor in with- 
drawing his claim without applying to the 
Court. The general policy of the Ordinance 
appears clear from the 27th section. He 
referred to the 273rd Rule of the London Court of 
Bankruptcy framed under the Act of 1869. 

Mr. Justice Buchanan said .* The question at 
issue is a very simple one. It is whether a 
creditor, having once proved his debt, can with- 



159 



*»» hit proof Alto^etber from the record 
wiUioat an order of Oourt. Now I should say 
tbt eTeryone lia« a risbt to withdraw his 
dtoiikmilcsBthe la^w prohibits him from so 
^ing. There is noHking mrhateyer in the Insol- 
ent Ordinmnce ^-Yticli forbids a creditor from 
vitMitwinfc Vila claiixi, and as a matter of 
pwctteeit iftdone every day. A creditor, for 
iasUnoe, may have proved a preferent claim 
H*i^ iki^ estate i objection is taken by the 
ofthcr creditorB or by the trustee to the pre- 
ference, and inrithout any order of Court that 
creator witbdra^ra hia preferent claim and 
the adminietratlon of the estate goes on 
without intermption. No doubt a creditor 
TQiutt remain bound for his share of any 
Wability incurred before the date of his with- 
drawal. In this in stance we are of opinion 
^at the applicants could withdraw their claims, 
bnt it must be distinctly understood that they 
are liable for everything done by the trustee 
preTioiuto their withdrawal. They are liable 
for the action instituted against Mason, and 
for any costs incurred in a band-fide manner 
op to the date of their notice. But from 
that time, after having given notice to the 
trustee, they are not liable for any further 
eosta incurred. In this case, however, we 
think the trustee acted bond fide^ and that 
he ia justified in coming to the Court to 
c»ppoee this application, and under these 
circnnistances we have come to the conclusion 
that oosU should not be given de bonU propi^iit^ 
hot diould come out ot the estate. The applica- 
ti€)o will be granted so far— that the applicants 
are not to be held liable for any costs incurred 
after the date of their withdrawal. 
Mr. Justice Upington concurred. 
(.AppUcant^i* Attorneys, Messrs. Fairbridge, 
Ard^ne k. Lawton; Respondents* Attorneys, 
Messrs. Tan Zyl k, Buissinn^.] 



AFTERNOON SITTING. 



or THE SBTATB OF THE LATB 
BUDOLPH TASMEB. 



f 1896. 

(May 2nd. 

:. Watermeyer moved for authority to the 
executor testamentary to dispose of certain 
live-stock, the property of the estate, and to 
deposit the proceeds, after payment of debts 
doe, in the Ouardians* Fund to the credit of the 
minor heira, it being inadvisable in their in- 
terests that the said cattle should be retained 

*B7 longer. 
The Court made no order. 



[Before Sir J. H. dbVillibrs (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
Upington.] 



DICKSON v. DICKSON. 



i 1895. 
^- J May 2nd. 

Mr. Watermeyer moved for an order to make 
abifolute the rule nUl for the dissolution of the 
marriage existing between the parties to this 
suit owing to failure by the defendant to obey 
the order of Court to restore to her husband 
his conjugal rights. 

The Chief Justice said : The rule nial ordered 
that the order of Court should be served on the 
respondent, but that ha'^ not been done: the 
citation only has been served by the plaintiff*s 
attorneys. But under the special circumstances 
in this case, we will allow this application to be 
made without further service, because it is quite 
clear that the original citation was served on 
the respondent; and as thi^ notice of the 
attorney was in accordance with the citation, 
no injustice will be done, and the Court will 
therefore make the rule absolute. But in 
future the Court will not do so unless the order 
of Court has been served. 



PENTONT V. POBTBB. 

Mr. Graham moved to make absolute the rule 
ni4l for an interdict restraining the respondent 
from parting with or otherwise disposing of 
certain two promissory notes, and from selling a 
restaurant business in which applicant was 
admitted a partner. 

Order granted. 



BEOINA V. VEDIMIBS. 



{ 



1896. 
May 2nd. 

Liquor — Sale without licence —No evidence 
of pale — Conviction quashed. 

V. wcui convicted by a Magistrate of contra- 
vening Act 28 of 1883, section 73, by 
selling liquor to one R. and others without 
having the licence required by law. 

There was no evidence whatever of the sale of 
the liquor ; but V.'s wife admitted that she 
had given some sherry^ which had been left 
ai the house by a visitor some few days 
before^ to two of the men. 

On appeal the conviction was quashed. 

This was an appeal from a sentence passeil 
upon the appellant by the Resident Magistrate 
of Knysna. 



160 



The appellant was'oharged with contrayening 
Act 28 of 1888, section 75 : In that upon or 
about the 22nd February, 1896, and at or near 
Balmoral in the district of Knysna, the said 
Tedders did wrongfully and unlawfully ^11 or 
otherwise dispose of a quart bottle full of 
intoxicating liquor or some greater or loss 
quantity thereof to Edward Bibbey, William 
Ralph, and Paul Peter Bornemesa without the 
licence required by law. 

The facte as proved by the eridenoe are 
briefly these : 

The appellant is a general dealer carrying on 
business in what is known as the Balmoral 
Hotel, which is an accommodation house but 
without a liquor licence, and also a post-office. 

On the dtkie alleged in the summons the three 
persons named came to the Balmoral Hotel, to 
await the arrival of the post-cart from Qeorge, 
and to ask Tedders to take a hand at whist. 

On the arrival of the post-cart two passengers 
(Rev. Mr. Underwood and a Mr. Scott) alighted 
and entered the hotel. On entering they 
noticed that Ralph was under the influence of 
drink, and that Bibbey had also had something to 
drink. They further observed in the room, 
which used to be the bar when the hotel was a 
licensed house, a bottle containing an amber 
coloured liquor and some glasses standing on a 
table, a portion only of which they could see. 

Bibbey and Bomemeza admitted that Mrs. 
Tedders had given them each a glass of sherry, 
and Ralph that she had given him a glass of lime 
juice, and that previously they had all had some 
liquor both at Bibbey's house and at an hotel at 
Millwood. The sherry was given by Mrs. 
Tedders in friendship without any considera- 
tion whatever. 

Mrs. Tedders stated in her evidence that 
liquor was not usually kept in the house but 
that a bottle of sherry had been accidentally 
left on the previous Sunday by Mr Ransby, of 
Knysna (this was corroborated by Ransby) and 
that it was this sherry which she gave to 
Bibbey and Bomemesa. 

There was no evidence whatever of a sale of 
liquor, or indeed that liqnor was kept in the 
house, nor was there anything to connect 
Tedders with the person who, it was alleged, 
had been supplied, except that he appeared to 
have been somewhere in the neighbourhood at 
the time. 

None of the witnesses stated that he had had 
anything to do with the transaction. 

The Magistrate found Tedders *• guilty" 
and imposed a fine of £t. From this sentence 
the present appeal was brought. 

Mr, Searle, Q.C., in support of the appeal : 
Tb^re was Qo evidence whftt^ver of fi sale, 



[The Court intimated that it w as not nooeaaary 
to argue the case for the appellant.] 

Mr. Giddy for tht Crown : Although the 
evidence is not strong still there is a strong pre- 
sumption that Ralph did obtain liquor on the 
premises, and on these grounds the Crown ia 
justified in appearing to support the conviotion 

The appeal was allowed and the sentence 
quashed. 

The Chief Justice said : I do not think the 
prosecutor is at all to blame for instituting thia 
prosecution, because there are suspicious cir- 
cumstances in the case. When the Rev. Mr. 
Underwood came to the appellant's house he 
saw the men in the room, which was formerly 
used as a bar, and there was an amber-coloured 
liquor on the table, which, however, some of the 
witnesses said was lime juice, and Mr. 
Underwood also found that one of the 
men there was somewhat undei the 
influence of liquor. Well, these are cer- 
tainly suspicious circumstances, but the wit- 
nesses called for the prosecution— those who 
knew anything about the matter— are ag^reed 
that not a drop of liquor was sold there that 
day. They say the bottle contained lime juice, 
and that the man Ralph got drunk at Bibbey's 
before he came to the place. Uuder these cir- 
cumstances I do not think the Court would be 
justified in upholding the conviction. The mere 
fact that a man was found drunk at the place 
is not enough to justify ttie convictiou. Two of 
the men had a glass of sherry, but that was 
fully explained; a bottle coutaiuing some 
sherry was left in this place by a Mr. Rao^by, 
and out of this bottle a glass of sherry was 
given. That is the evidence for the prosecution. 
At the same time, I think that the appellant 
had better give up the bar altogether. He has 
ceased to have a hotel, and he might as well 
cease to have a bar, because if the same sus- 
picious circumstances occur again he may be 
convicted, and the conviction may be sus- 
tained. But on the present evidence it seems to 
me only a case of suspicion ; without a tittle of 
evidence of sale, and therefore I think that the 
conviction muse be quashed. 

Their lordships concurred. 

|_Appellant's Attorneys, Messrs. Scanlen Sc 
Syfret.] 



BBaiNA y. KEYTBR. 



{ 



]896. 
May 2nd. 

Culpable insolvency — Pu nishmeat. 

A punishment of six months' imprisonment with 
hard labour may be pajtsed in respect of each 
of the offence i enumerated in the 7l8t geciion 
of the insolvent Ordinance, 



161 



This was an i^rguuneiit on a point re«eryed at 
thttriilof the prisoner at the Circuit Court 
nee&tlyheM at the PaarL 

The Moused 'vtbb indicted among^Bt other 

oSenett with the crime of culpable ineolvency. 

There vere three indictments against the 

loiMAcr. In the first indictment three charges 

ofwdpaVAe inaolTency were preferred against 

tbe pnsoner, and he was found guilty on each. 

On the third indictment the prisoner pleaded 

gulty to culpable insolvency. 

The prisoner was sentenced to five months* 

imprisoiunent with hard labour on each count 

\ of the iudiciment on which he was found 

\ pnlty, and to three months in respect of the 

\ eount to which he pleaded firuilty, or to eighteen 

JBoaths in all. 
/ It was oonten<led at the trial that under the 
71st section of the Inf'olvent Ordinance the 
prisoner could only be sentenced to a maximum 
pvmishment of six months. The learned judge 
(Mr. Justice Buchanan) who presided at the 
trial expressed the opinion that six months* 
impriaonmsnt ooald bo passed for each contra- 
vention of the list section, but he reserved for 
ar)giEment before the Supreme Court the ques- 
tion aa to the legality of the sentence passed by 
him on the prisoner. 

Mr. Molteoo for the prisoner : It is submitted 
that the maximum punishment that can be 
paiTcd on a person found guilty of culpable 
insolvency is six months' imprisonment with 
hard labour. The prisoner was guilty of only 
<we crime — culpable insolvency. There was 
only one insolvency and the maximum statu- 
tory punishment cannot be exceeded. ISectlon 
72 of the Ordinance confers a new jm-isd ction 
on magistrates, and shows that il was clearly 
the intention of the Legislature that the punish- 
ment for culpable insolvency should be limited 
to six mouths. All or any of the acts enu- 
Txierated in the 71st section shall constitute 
culpable insolvency, but if an insolvent is 
found guilty of having committed any two 
or more of such acts he cannot be sentenced 
to a greater punishment than the Ordinance 
prorides. YThere there is a doubt statutory 
of fen c es most receive a liberal interpretation. 
Maxwell, p. 345. As to the intention of the 
Ijegislature that six months should be the 
maximum punishment, see Hon, Wm, Porter^t 
Speeeha^ p. 257. 
The sentence should be reduced to six months. 
Mr. Giddy for the Crown. 
The point reserved was decided against the 



The Chief Justice said: The 7lBt section of 
the Ordinance creates nine specific and distinct 
under the generic term of culpable in- 



solvency; and on each offence, in my 
opinion, the insolvent can be prosecuted, 
and if found guilty, sentenced to the 
punishment which is provided by the section. 
If any doubt were left upon the question, that 
dou)>t is removed by the terms of the 72nd and 
78rd sections. The 72nd section provides that 
'* it shall be lawful for the Courts of Resident 
Magistrates in this colony, on the conviction of 
any of the offences set forth in the last preced- 
ing section, to sentence such person to the 
punishment in the said section provided.** If 
Mr. Molteno*s reading were correct this section 
would have read, "on the conviction of any 
person of the offence mentioned in the last 
section.** It is clear, therefore, that unJer the 
72nd section the Magistrate would have juris- 
diction, if the different offences were 
specific and separate, to sentence the in- 
solvent to each of the terms of imprison- 
ment provided by the 71st section. The 
73rd section is in the same terms in regard to 
any of the offences set forth in the 71st section 
of the Ordinance, and it seems only reasonable 
that it should be so, because one can hardly 
imagine that the Legislature intended that a 
man who commits every one of the offences 
mentioned in the 7lBt section should be as 
lightly treated as one who committed only one 
offence. One man might not have kept books, 
and he would be liable to the same punishment 
as a man who had not only not kept books, but 
who had committed all the other offences speci- 
fied in the 71st section. Well, then, that 
being so. I think the whole argument 
for the prisoner falls to the ground. 
No doubt there are in this case three specific 
counts for breach of trust, but really it was a 
separate breach of trust committed at different 
times and in respect of different persons, and 
this case is met by the 63rd rule of Court. For 
these reasons the question reserved for the opinion 
of the Court must be decided against the 
prisoner. 

Mr. ustice Buchanan : This was the opinion 
I expressed at the trial, and I am glad to hear 
that the Court agrees with me. 

Mr. Justice Upiugton concurred. 

f Prisoner's Attorney, B, J. Mostert] 



FBIBBBG V. DB JAQEB. 



f 1896. 
1 May 2nd. 

Interpleader suit — Pledge — Goodu attached 
declared executable. 

Where goods, which had been attached hy a 
judgment creditor, were allied to have 
been sold to one De J. by the judgment 



l62 



debtor ^ although in terms of the allied 
contract of salpy they were to remain in the 
possession of the jud^vi^nt debt-or^ and were 
actnally in his possession when they were 
attached, 
Tiie Court, rtveraing a Magistrate's decision^ 
held that the transaction between the Judg- 
ment debtor and l)j J. loas not a bona-fi.le 
sale, that it was a mere pledge, and that as 
the goods remained in the po session of the 
judgment debtor, they were liable to 
execution. 



This was an appeal from a decision of the 
Resident Magistrate of Kiversdale, sitting at the 
Periodical Court at Heidelberg, in an inter- 
pleader suit in which both the appellant and the 
respondent were summoned to have it deter- 
mined whether certain movable property 
(attached on the 23rd January, 1895, by the 
messenger by virtue of a writ of execution issued 
at the instance of Friberg against the movable 
property of one Casper Hester, in satisfaction of 
a judgment obtained against him), and claimed 
by De Jager as his property, was liable to execu- 
tion. 

The articles attached were claimed by De 
Jager by virtue of a written contract of sale 
•xecuted by Bester. 

The evidence went to show that De Jager and 
Bester, who are brothers-in-law, live in the same 
house. According to De Jager the articles 
attached (11 ostriches, 60 sheep, 3 head of cattle, 
1 mare and 1 saddle) were bought or taken over 
by him from Bester fur a debt of HIM, 

Bester was summoned in thiee cases, and De 
Jager paid £16 lOs. on his account and became 
liable for another £8. Bester also owing 
De Jager £10 for cash lent. 

The movables were in Bester's possession 
when they were attached. 

The Magistrate found that the transaction 
between De Jager and Bester was bonajide, and 
declared the property not executable. 

From this judgment Friberg now appealed. 

Mr. Juta, Q.C., was heard in support of the 
appeal. 

Mr. Joubert for the respondent. 

The appeal was allowed. 

The Chief Justice said: The Court has more 
than once decided that a contract which pur- 
portfl to be a contract of sale is not necessarily a 
sale, if it is clear from the surrounding circum- 
stances that the transaction was intended to 
operate only as a pledge. Now in the present 
oasethere was no contract of sale drawn up at 
all. The only contract put in is one in which 



Bester acknowledges to have received certain 
articles from De Jager, and he promipes that be 
will take care of them, and that he will not have 
the right to sell or exchange them without the 
consent of De Jager. Now if the parties really 
believed that these goods belonged to De 
Jager. it would have been wholly unneoeaaary 
for them to have made such an arrange- 
ment, because necessarily it would follow that 
if the goods belonged to De Jager, Bester, who 
had the custody of them, would not be entitled 
to sell them. In this case it strikes me as very 
strange that James Helm, who drew up this 
document, wos not called as a witness. I see he 
is also the agent who received the warrant to 
defend the case in the Magistrate's Court. The 
handwriting is exactly the same and the paper 
is exactly similar. The evidence appears to be 
that no receipts were produced for these pay- 
ments ; it is only the attorney's evidence ; that 
Bei^ter and De Jager came to his office, and De 
Jager undertook to pay the costs of 
three summonses, amounting to £15 lOs; that 
De Jager paid off part and he looked to him for 
the balance, Bester being relieved from liability. 
Now, in my opinion, the trausaction was this .- 
De Jager may have lent money or paid money 
for Bester in order to secure to himself these 
goods ; a contract purporting to be a sale was 
drawn up, but it was really intended to operate 
as a pledge, and inasmuch as these goods were 
afterwards kept by Bester and weie not in the 
custody of De Jager, the pledge ceased and the 
goods ought, in my opinion, to have been 
declared executable by the Magistrate. The 
appeal must be allowed with costs. 

[Appellant's Attorney, G. Montgomery- 
Walker ; Respondent's Attorneys^ Messrs. Beits 
& Herold.] 



SUPREME COURT. 



[Before Sir J. H. DS Villibbs (Chief Justice), 
Mr. Justice Buchanan, and Mr. Justice 
Upington.] 



BUDD V. BUDD. 



\ 1895. 
I May 3«l. 

This was an action for divorce brought against 
Edward Augustus Rudd, of Oudtshoom, by his 
wife for a decree of divorce on the giound of his 
adultery. 

Mr. Molteno appeared for the plaintiff. 

Ihe defendant in person. 



163 



Mr. Norman Laqy produced the marriage 
roister. 
The defendant admitted the marriage. 
Hts. Jacomina Josina Rudd, of Oudtshoorn, 
the plaintiff, said she was married to defendant 
in J 881. Th-^re had been eight children, eix of 
whom were etill alive, all minors. At 
the latter end of 1894. her husband was 
often away from Oudtohoom. He first 
went to Cape Town in July, and returned in a 
short time ; then left again, and remained till 
about the end of September. He was also away 
in Novem1>er and January. They were married 
in community of property. Bhe brought into 
community £600 and a life-interest, with certain 
property inherited from her father. Defendant 
was now an insolvent. Plaintiff (continuing) 
said she intended to make a living by taking in 
boarders. Her mother was going to nelp her by 
building a house for her at Oudtshoom. bhe 
wished for the custody of the children. 

Cross-examined: Last year defendant was 
not very kind to her children. He bad had to 
ask for her forgiveness. He had acted un- 
kindly to her mother, and he said he did love 
the children except the eldest. He had never 
beaten or ill-treated the children. She did not 
think by bringing that action she had acted 
hastily. Why had he spent money so 
lavishly ? She would have sued for a divorce 
after hearing of his actions, whether her 
mother had spoken to her or not 

£dward Foley said he kept a boarding-house 

in Loop-street. About October, 1894, defendant 

came to his house with a woman he 

knew, named Mrs. Polly Farrance. She 

had been a servant at Claridge's 

Hotel. Defendant came and said the woman 

was his nurse, and had to attend him as he was 

ill. He hired a room in which was one bed. He 

said he was unable to sleep at nights and the 

woman had to look after him. He had no 

suspicions at fir^t, but one momiug about 8.30 

he happened accidentally to go into the room 

and saw them lying in bed together. He turned 

defendant out of the house at once. The woman 

had no money and nowhere to go, and she was 

retained as a servant She was now in the Free 

State. The next time he saw Rudd was late one 

night when, from what he had heard from a 

servant, he went to the room of a woman, 

Miss Dick, who had just come from 

Bngland, and found Rudd lying on one of 

the beds in the room. The woman 

had lodged at his house a week. She did 

no work— only drank. When he got to the room 

he found the door locked, and when he' knocked 

the light was blown out He asked the woman 

if anyone was in the room with her. She 



replied, ** No." He demanded admission. She 
said she was undressed and in bed. He said 
she must dress and admit him. He waited ten 
or fifteen minutes, and was then allowed into 
the room, and found Rudd lying dressed on a 
bed. 

Cross-examined : He denied having used any 
inducements to get defendant to come and live 
at his house with either of the women. Defendant 
had admitted adultery to him with Mrs. 
Farrance. He said he was not guilty with 
respect to Miss Dick. 

Walter Osmond Hanson corroborated the last 
witness with respect to seeing defendant in 
Miss Dick's room lying on one of the beds. The 
date was a little after Christmas. 

Defendant expres-ed himself desirous of 
giving evidence, but the Chief Justice said he 
could scarcely advise him to do so, and de- 
fendant withdrew his request and simply asked 
that he might at all reasonable times be allowed 
to see his children, of whom he said he was very 
fond. 

The Chief Justice said. **uflScient proof of 
adulteiy has been given. A decree of divorce 
with costs is granted, plaintiff to have the 
custody of the children, defendant to have 
access to them at all reasonable times and 
places. 

[Plaintiffs' Attorneys, Messrs. Fairbridge, 
Arderne & Lawton.J 



MATTHYS V. HENNINQ. 



f 1895. 
(May ;)rd. 

Mistiiuiuiry Institution — Rules and Regula- 
tion? — Msigistrale's jurisdiction —Eject- 
ment— Act 20 of 1856 section 10. 

The rules of a Missionary Listitution, which 
had been approved of by the Goveniir, pro^ 
vided in effect that a resident should forfeit 
his temporal rights at the suit of any of the 
ni'ssionarieiiy should it he proned t) tl'e 
satisfaction of the Magi titrate of the 
district, that after reasonable warning , hg 
persisted in disregarding the temporal 
regulations of the instHntion, and that his 
conduct and exampi' tended to demorcdite 
the inhabitants. 

Charges of intemperance and immorality 
having been proved against M., an inmate of 
the institution, in an action for ejectment 
brought against htm by the resident 
missionary in the Magistrate's Court^ 
judgment was given in favour of th9 
plaintiff. 



l64 



M.*8 right of occupation iww of the value of 

£40. 
Held, on appeal, reversing the judgment of the 

Court below, that the Magistrate had no 

jurisdiction. 



This was an appeal from a decision of the 
Resident MagiBtrate of Caledon in an action 
for ejectment brought against the present 
appellant, defendant in the Court below, by the 
respondent, plaintiff (the Rev. Paul Henning, 
superintendent of the Moravian Missionary 
Institute at Genadendal), 

The summons alleged : 

1. That heretofore, to wit, on or about the 15th 
day of February, 1858, the then Governor of the 
Colony of the Cape of Good Hope, on behalf 
and in the name of Her Majesty Queen Victoria, 
granted unto the plaintiff's predecessor in office 
(the Rev. Kolbing) a certain piece of perpetual 
quitrent land, whereon is situate the Missionary 
Institute of Genadendal, for the use Vind in trust 
for such persons as may from time to time be 
lawfully resident at the said institution, and 
further subject to the regulations of the said 
institution revised, added to, and ^approved by 
the Government of the said colony in the year 
1857. 

2. That the defendant, prior to the year 1889, 
became a lawful resident of the said institute at 
Berea, adjoining and being part of the said 
institute, and as such lawful resident became 
possessed of a certain house and garden 
premises at Berea subject to the said regula- 
tions, and the said defendant is still in possession 
of the said garden and premises and refuses to 
quit same, although frequently ref^ueated so to 
do by the proper authority at Genadendal 
aforesaid, owing to the fact that the defendant 
did, through and by reason of his wrongful, un- 
lawful, and immoral conduct during the period 
reckoned from the beginning of the year 1889 
up to the date hereof, legally forfeit his tem- 
poral rights in and did cease to be such lawful 
resident of the said institution, inasmuch as he 
did, int^fr alt-a^ specially violate and contravene 
regulation No. 6, chapter 4 of the 
said regulations, and generally all and 
every the regulations relating to the 
good conduct and behaviour of the residents of 
the said institution, in that he was on or about 
the 17th day of August, 1889, excluded from the 
the sacred or church privileges of the said in- 
stitution, and is still so excluded by reason of 
his adultery with one Matilda Arense, com- 
mitted within the precincts of the said institu- 
tion, and further, by reason of his having 
been convicted on various and divers subsequent 



occasions before the said Court of the crimes of 
drunkenness, rowdiness, and using bad lan- 
guage, more particularly during April. 1894, on 
the 9Srd August, and on f6th October, 1894. 

Wherefore by reason of the defendant's afore- 
said conduct, and generally by . reason of his 
immoral and improper example, since the y&ur 
1889 up to the date hereof, which said conduct 
and example have tended and still tend to 
demoralise the inhabitants of the said institu- 
tion, and generally on account of the facts here- 
inbefore alleged, the plaintiff in his aforesaid 
capacity doth pray : 

(a) That the said defendant may be con- 
demned to deliver up to tne said plaintiff posses- 
sion of the piece of ground and premises afore- 
said, and that, if need be, the said plaintiff may 
be put into possession by the proper officer of 
this Court, and that the said defendant may be 
ejected from the said premises, and interdicted 
from entering upon or disturbing the same. 

(b) That the defendant may be adjudged to 
have forfeited all and sundry his other temporal 
rights as a resident of the said institution. 

(c) Costs of suit. 

The defendant took several exceptions to the 
summons, the most material of which were the 
following : 

2. That plaintiff having no title to the pro- 
perty in dispute has no right to sue (Act 20 of 
1866, section 10). 

Exception overruled* 

3. That future rights being in dispute the 
case is beyond the Magistrate's jurisdiction. 

Exception overruled. 

4. That the property of the defendant being 
of the value of over £40, the case is beyond the 
Magistrate's jurisdiction. 

This exception was also ovei ruled on the 
grounds that the property was under the value 
of £40. 

The defendant in his plea denied (1) the 
allegation of adultery and (2) that during his 
long term of residence, viz , forty-eight years, 
his conduct had been such as would tend to 
demoralise the inhabitants of Genadendal ; 
further, he denied that he was convicted before 
the Court on the 28rd August, 1894, as alleged in 
the summons, and he finally pleaded the general 
issue. 

Rule G, Chapter 4, of the Regulations, is as 
follows : 

A resident may be excluded from church 
privileges without thereby forfeiting his 
temporal rights as a resident, but he shall 
forfeit all such last-mentioned rights at the 
suit of any of the missionaries or overseers, 
should it be proved, to the satisfaction of the 
magistrate of the district, that after reasonable 



165 



\ 



wftrntag. he persists in disregardiDg the tem- 
poral regralations of Che institution, and that 
hit condact and example tend to demoralise 
the inbabitanta. 

The cbarf^ea of intemperance and immorality 

were es^tabliehed. but as to the value of the 

defendant's house an<l premises tbero was con- 

B&derable difference of opinion Ijetween the 

lAa\ntiif*« and the defendant's witnesses. 

Attording to the former, the value was not more 

than £3Cy. and according to the latter the value 

ot the premises was at least £50. 

In estimating the value of the premises the 
1ia^«trate did not take into consideration the 
eraiing rights held by the defendant as a 
resident of the institution, and which entitled 
him to graze 300 sheep and twenty- four head of 
cattle. 

The Magistrate relying, as he stated in his 
reaiona on Bechler v. Fa a R'lct f6 Searle, 
203), gave judgment in favour of the plaintiff 
with onsta 

From this judgment the defendant now 
appealed. 

Mr. Searle, Q C. in support of the appeal. 
The Magistrate had no power to malce the 
wide order which he made. He could not 
grant an interdict nor could he declare a 
forfeiture. Rights in future were clearly 
iDToWed and the Magistrate had no juris- 
diction. See Act 20 of 1856, section 8 suh- 
sect'oo 3. Ac^ to ejectment, Kee section 10. The 
regulations of the institution cannot confer a 
jurisdiction on the Magistrate which he does 
not |K)S4es8 under the Act. The Magistrate's 
attention could not have been directed to 
Wildsekvt V. KoWng (3 Searle. 218). 
Mr. Bose-Innes. Q.C.. for the respondents. 
The appeal was allowed with costs. 
The Chief Justice said: There is much to 
be said in favour of the view that mngistrates 
shonld have jurindiction in cases arising in these 
missionary institutions. But a great deal may 
also be said on the other side. Here is a case of 
a man born and bred in this institution, he has 
liTed there for over forty-eight years, he has 
bnilt his own house, made his own garden, and 
broQght up his family all in tnls place. Now 
he is to be turned out of house and home and 
deprived of the privileges which he possessed by 
order of the Resident Magistrate of the district. 
It was never intended to confer such large and 
ezteosive powers upon Resident Magistrates. 
Thesommons claims not only a decree of eject- 
JDeo^ J7ut that the defendant be interdicted from 
entering upon or disturbing such premises, and 
be adjudged to have forfeited all his temporal 
righte as a resident of the institution. The 
MaeistrBie err^d in granting the interdict, it is 



admitted, and also in adjudging the defendant 
to have forfeited all his temporal rights. The 
only question therefore is whether he was right 
in ordering his ejectment as well. Under the 
Magistrate's Court Act magistrates have juris- 
diction in cases of ejectment, but there is a 
distinct proviso in the 10th section that it shall 
not be shown by the defendant that the right 
to the occupation .... is to him of 
the clear value of £40 sterling or upwards. 
In this case the defendant has proved that the 
occupation ]-« to him of the clear value of £40. 
The plaintiff's witnesses admit that they have 
taken the buildings and garden to be worth £30, 
but they did not take into consideration the value 
of the grazing rights. Now, surely £10 would 
not be an unfair estimate to place on these 
rights. At any rate, £10 would not be far under 
the value to the defendant of the grazing rights 
admitted to be attached to his holding, and if 
that amount is added to the valuation even of 
the plaintiff's witnesses, there is no doubt as to 
the value l)eiDg far above £40. If we take the 
estimate of the defendant's witnesses, that 
amount is far exceeded. That being so, 
under the 10th section of the Act, the 
Magistrate had i)0 jurisdiction, and 
ought to have upheld the exception. 
I regret in one respect that a missionary insti- 
tution and a missionary like the plaintiff should 
be obliged to come to the Supreme Court in- 
stead of by some cheaper process obtaining a 
judgment in the Magistrate's Court. At the 
same time we cannot extend the Magistrate's 
jurisdiction, and as he had no jurisdiction in 
this case, the appeal must be allowed with costs. 

Mr. Justice Buchanan : I concur on the 
ground of want of jurisdiction in the Magintrate. 
At the same time. I hold that every person who 
joins and takes the benefits of these institutions 
must abide by the rules. 

Mr. Justice Upington concurred. 

[Appellants' Attorney. Paul De Villiers; Re- 
spondent's Attorney, G. Montgomery -Walker.] 

DB VILLIBKS V. WOLHUTBR. 

Mr. Molteno moved for an interdict restrain- 
ing the defendant from removing her furniture 
from certain premises let to her by the appli- 
cant, pending an action for the recovery of rent 

due. 
The Court granted the application, with leave 

to telegraph the order. 

VAN NOORDBN V. VAN ZYL. {May^^Sth. 

Misjoinder— Exception — Summons — Declar- 
ation — Variance. 

The defendants excepted to a declaration as 
being had in law and embarrassing, on the 



166 



grouttd that it it a misjoinder to join a cause 
of action against the two defendants as 
executors and indivi'^ually and a second 
cause of action against one defendant 
individual Ij/ in the same declaration. 

In fact, hotoever^ the declaration contained one 
count on a promissory note against the two 
defendants individually and a second count 
on a mortgage bond against the second 
defendant individually, although the first 
count in the summons was against huth 
defendants as executors as well as indivi- 
dually. 

Held, that the exception to the declaration 
could not he sustained. 



This was an ari^ument on an exception taken 
to the plaintiff's declaration. 

The action is instituted by Mr. Emile H. van 
Noorden against Susannah Eliiaheth and Pieter 
Marthinus van Zyl. 

The declaration alleged that on the 28th day 
of August, 1890, the defendants for ralue 
received made in favour of the plaintiff or order 
a promissory note for £124 5s. 6d. in the follow- 
ing terms. (Terms of note set out. \ 

That the plaintiff is the legal holder of the 
said note, which became due and payable on 
the 28th December, 1890. and is still unpaid, not- 
withstandiag lawful demand, and the defen- 
dants are jointly and f^everally indebted to the 
plaintiff in the sum of £124 5». 6d., with interest 
thereon from the 29th December, 1890. 

That the second-named defendant is further 
indebt^ to the plaintiff in the sum of 
£85 18s. lOd., being the amount of a certain 
mortgage bond passed on 5th June. 1891, by the 
said defendant in favour of the plaintiff, and 
which has become due and payable by reason of 
non-payment of interest. The capital sum of 
£85 188. lOd. being due after lawful demand, 
together with interest at the rate of 6 per cent, 
reckoned from 5th June, 1891. 

The plaintiff claimed judgment : 

(0) Against the defendants jointly and 
severally for the sum of £124 58. 6d., with 
interest from 29th December, 1890. 

(ft) Against the second -named defendant for 
the sum of £85 188. lOd., with Interest at 6 per 
cent from 6th June, 1891. 

(0) Further relief with costs. 

The sumnLons, after claiming the sum of 
£124 5s. 6d. from both defendants, proceeded : 

Or otherwise from both defendants, either in 
their individual capacity, or alternatively, in 



their capacity as executors, the said sum of 
£124 5s. 6d., with interest, beinx balance of an 
account. 

Before pleading to the declaration, the defen- 
dants excepted thereto as being bad in law and 
embarrassing, on the ground that it is a mis- 
joinder to join a cauEe of action against the two 
defendants as executors and individually, and a 
separate cause of action against one defendant 
individually in the same declaration. 

For a special answer to this exception the 

plaintiff said as follows : 
Whereas it is true that in the summons in 

this suit the defendants are cited either indi- 
vidually or in their capacity as executors 
testamentar}' of the estate of the late Gideon 
van Zyl, yet in the declaration the plaintiff has 
not persevered nor does he persevere in his 
action against the defendants as such executore, 
but withdraws his suit against the defendants 
in that capacity, persevering and maintaining 
his said suit against the defendants in their 

individual capacity only. 
Mr. Rose-Innes, Q 0.. for the defendants, was 

heard in support of the exception. 
Mr. Juta. Q.C., for the plaintiff. 
The exception was disallowed with costs. 
The Chief Justice said : A<( a matter of form, 

it would have been better that there should be 
two separate actions, one being against both 
defendants on the first coimt and the other 
against the second defendant on the second 
count- The Court could then, on the application 
of either plaintiff or defendants, have consoli- 
dated the actions into one. The summons is 
certainly irregular in suing the two defendants on 
the first count in a different capacity from that in 
which the second defendant is sued on the 
second count, but this irregularity does not 
occur in the declaration and no exception is 
taken on the g^undof variance. The exception 
taken is really to the summons and not to the 
declaration. But the defendante' counsel has 
argued that this exception is wide enough to 
cover the further objection that the defendants, 
although sued individually, ought to have been 
declared against separately in respect of the 
two counts. In my opinion this objection is not 
properly raised by the exception. The course 
adopted by the plaintiff certainly tends to the 
saving of costs, and as it does not prejudice tbe 
defendants in any way, the Court is not prepared 
to sustain the objection, which is purely 
technical, unless properly raised by exception. 
The present exception must be disallowed with 

cc^ts. 
Their lordships concurred. 

[Plaintiff's Attorneys, Messrs. Fairbridge, 

Ardeme ic Lawton; Defendants' Attorney, Q. 

Montgomery- Walker. ] 



167 



Mte pmie M Azwncx Ain> sabp. Re mbfdt*s 



Ob the application of Mr. Oloee, Mr. E. R. 
STfret WM appointed proTisional trustee, with 
power to cany on the business pending the eleo- 
tioa of a tmstee. 



SUPREME COURT. 



[Before Sir J. H. DB ViLLIEBS K.C.M.G,, 
(Chief Justice), and Mr. Justice Upinoton, 
K.C.M.G.] 



Ex parte byanb. 



/ 1896. 
I May 9th. 

On the motion of Mr. Innes, Mr. Morgan 
OweaETanswas admitted to practise as an 
sdFoeate. 



PROVISIONAL ROLL. 

WIXflON v. JAFFA. 

Mr. Tredgold mored on behalf of the plaintiff 
for discharge of the proyisional order. 
Oranted. 



HOLLIHaHUBST Y. FBAICI AND CO. 

Mr. Tredgold moved for judgment for £,&d 
OD a biU of exchange in terms of consent. 
Judgment as prayed. 



AKD DUKGAH Y. KLAAS AND 
HBLLIG. 

Od the motion of Mr. Close, the final order of 
■eqncstratioii was decreed. 



SMITH Y black's EZBCUTOBS. 

Mr. Roee-Innes, Q.C., moved for judgment in 
terms of consent. 
Judgment as prayed. 



MCLEOD Y. MBTEBS. 

Mr. Close moved for judgment, under rule 329 
(iO. for £20 lis. 4d. 

Judgmoit granted, but without costa, there 
being no prayer in summons for costs. 






GRAND PABADB BXnLDINGS COMPANY Y. 

NANNUCOI. 

Mr. Maskew moved for judgment for £375, 
KQtv and £9 2s. 6d., expenses of lease. 
Judgment granted in terms of summons, 

Z 



BBHABILITATION. 

On motion from the bar, the rehabilitation 
was granted of Johannes Hendrik Russouw and 
Carl Hermann Poppe, survinng partners of 
Poppe, Russouw k, Co. 



COLEMAN Y. GEBD8 TUTOB& 

In re qbbds. 



f 1896. 
(May 9th. 

Tutors — Misconduct — Removal— Alieoation 

of land — Jurisdiction of Bastcrn Districts 

Court — Ordinance 105, section 24. 

In CM application for removal of the ttUor* of 
a minor Jrom their office on the ground that 
(hey had sold a farm belonging to him for 
less than its fair price, and had failed^ 
ivithin a reasonable time, to pay the pur- 
vhase price received by them to the Master 
of the Supreme Court, 

Held, that inasmuch as they obtained the 
authority to sell from the Eastern Districts 
Court in the belief that such Court had 
jurisdiction and were afterwards directed 
by a Judge of that Court to let the order 
remain in abeyance, pending further inquiry, 
they were not guilty of such misconduct a$ 
would justify their removal. 

The Eastern Districts Court, as such, has no 
jurisdiction to authorise the sale of a minor*s 
land not situated within the Eastern Dis- 
tricts 

Quflere, whether a Judge of that Court has 
such jurisdiction under the 2M section of 
Ordinance No. 105. 



This was an application by Mrs. Wilhelmina 
Dorothea Coleman (bom Gerds), the minor's 
aunt. 

On 7th June, 1893, the respondents were ap- 
pointed tutors dative of the minor under letters 
of confirmation of that date. 

The assets belonging to the minor comprised 
intei' alia a certain farm called Elands Poort, 
situate in the division of Willowmore. On 
3rd October, 1894, the tutors dative upon peti- 
tion to the Eastern Districts Court obtained an 
order confirming a provisional sale of the said 
faim to one Hay ward for the sum of £1,300. 

The petitioner alleged that she had been in- 
formed that the sum of £1,300 was far below the 
real value of the farm, which, if put up to public 
auction, would have realised £2,000. That the 
tutors dative had filed no account of moneys re- 
ceived on account of the minor, who had only 
received the sum of £30 from them for his 
support since 7th June, 1898, 



168 



That she considered the sale as not being to the 
advantage or interest of the minor, and that, if 
the tutors had done their duty and sold the farm 
by public auction, the minor would have bene- 
fited by such sale, and that, moreover, one Jurie 
van Veuren, the lessee of the farm, was prepared 
to pay £1,600 for it. 

That the tutors dative were not fit and proper 
persons to represent the minor. 

That the petitioner had been informed that 
the tutors dative have long since received the 
sum of £1|300, and that they have not paid the 
same into the hands of the Master, in terms of 
the order of the EaBtem Districts Court, and 
that Hayward is taking steps to compel the 
tutors dative to effect transfer to him of the 
farm. 

The prayer was for an order : 

(a) Appointing a curator ad litem in an 
action to be instituted on the minor's behalf to 
set aside the sale, and fco intervene in the action 
by Hayward against the tutors. 

(h) Removing the tutors dative from their 
office as such, and for the appointment of some 
fit and proper persons in their place and stead 
to the management of the minor*s property. 

When the respondent applied to the Eastern 
Districts Court for confirmation of the sale 
the Court referred the matter for report to the 
Registrar of that Court, who reported iiUer alia, 
as follows : 

" I consider that it will be for the benefit of the 
minor if the Court were to confirm the sale as 
proposed; however, with a view to protecting the 
minor's interests that the order ba granted to 
the effect that. . . . The Registrar of Deeds 
be authorized to permit the transfer of the 
property aforesaid to William I. Hayward or to 
any other purchaser on production to him of 
proof that the sum of at least £1,300 has been 
paid in respect of the purchase amount into 
the hands of the Master of the Supreme Court 
as administering the Guardian's Fund." 

" The said Master of the f Supreme Court to be 
authorised whenever he may consider it to be 
for the benefit of the minor to cause the said 
sum of £1,300 (or more) to be withdrawn from 
the Guardian's Fund for investment in first 
mortgage bonds, to be approved of by him, and 
under such guarantees as to the said Master 
may seem proper'.' 

Upon the receipt of this report the Eastern 
Districts Court ordered as follows: 

*' That leave be granted to the applicants to 
sell the property upon the conditions stated in 
the petition (to wit, that the purchase amount 
of £1,300 be payable in cash and that the pur- 
chaser pay the costs of this application), and 
that transfer be made and the purchase amount 



paid into the hands of the Master of the 
Supreme Court upon the conditions and in 
terms of the Registrar's report." 

Mr. Searle, Q.C., for the applicant. 

Mr. Graham for the respondents. 

Mr. Rose-Innes, Q.C., held a watching brief 
for Hayward. 

The Chief Justice said : It is impossible at 
this stage to give a final decision upon the 
question of jurisdiction which has been raised. 
The Eastern Districts Court, as such, had no 
jurisdiction in respect of the minor's land 
situated in Willowmore, which is not within the 
Eastern Districts at all, but it has been urged 
on the respondents' behalf that Mr. Justice 
Maasdorp had jurisdiction, as Judge of the 
Supreme Court, to authorise, by his order, the 
sale of the minor's land by his tutors (the 
respondents) to Hayward. The 24th section of 
Ordinance 105 prohibits the alienation of any 
minor's immovable property "unless the 
Supreme Court or any Judge thereof have 
authorised such alienation." In practice 
applications for such authority are generally 
made to the Supreme Court, but when they are 
made by a Judge specially assigned to that 
Court he issues his order through the 
Registrar of the Supreme Court in the 
same way as other orders made by a 
Judge in Chambers in Cape Town are issued. 
It would certainly be a strange anomaly if a 
Judge assigned to the Eastern Districts Court 
had larger powers than that Court it-self, and 
could, as has been done in the present case, 
make an order authorising the sale of a minor's 
land not situated within the Eastern Districts 
and giving directions to the Registrar of Deeds 
and the Master of the Supreme Court in regard 
to the transfer of such land and the disposal of 
the proceeds of the sale. This question can be 
more fully considered in the action which has 
been brought by the purchaser (HaywardJ 
against the tutors. On behalf of the minor an 
application is now made for the appointment of 
a cvratof* ad litem, to intervene as defendant in 
such action for the purpose of raising the 
question of the invalidity of the sale on the 
ground of want of jurisdiction in the Judge 
who made the order and the inadequacy of the 
price paid. The application will be granted 
and Mr. Searle appointed onrator ad litem. 
In regard to the further application that the 
tutors be removed from their trust there is not 
sufficient evidence to justify the Court in order- 
ing such removal. Even if the price was 
inadequate it should be borne in mind that the 
authority of the Eastern Districts Court was 
obtained in the belief that that Court possessed 
the requisite jurisdiction. The delay in paying 



[ 



169 



ihcBQm TCoeWed. by tliem as the price of the 

liod into the b&ndB of the Master of the 

Bnpieme Court is explained by the direction 

wbichthe attorney received from the Judge- 

^Riideiit to let tlie matter remain in abeyance 

pending further inqiury. The respondents 

mut, however, he ordered, to pay the money 

viDunteii days to the Master. The question of 

ooiti can stand over until after the trial 

lAppUeanVa Attorney, Gus. Trollip; Respon- 
4atf Attorney, C. C. Silberbauer; Hayward*B 
AtUmers, MesBra. Scanlen Sc Syfret] 



IS THE ESTATE OF BLIZABBTH BODOKB. 

Mr. McLachlan moved for authority to the 
cxMQion to raise a sum of money on second 
mortgage of the landed property of the estate, 
ntnated at Green Point, for the purpose of set- 
thitg presiing claims. 

TheTalueof the property was said to be 
ilSiifiOQ, and the second mortgage was proposed 
to be £517. 

Order granted. 

BHAEP y. BHABP. 

Mr. Buchanan moved for the attachment 
ad fumdMtdamjttrudictionmn of certain land 
and promises known as No. 3, Church-square, 
Gape Town, in an action about to be instituted 
by edictal citation against Herbert Sharp for 
the xecoYeiy of the amount of a mortgage bond, 
amount of the bond was £2,100. Sharp 
\ in London, and had paid neither principal 
interest 
Order granted. 

0''BBEA ¥. POST ELIZABETH MUKIOIPALITT. 

On tlie motion of Mr. Searle, Q.C., Mr. 
Moltenowas appointed commissioner to take 
the evidence of one Thomas Reere, a witness 
tor the defendants. 



MOBOBNBOOD Y. MOBOBNBOOD. 

Mr. Currey moved that the rule nisi should be 
made absolute admitting applicant to sue in 
fvrma pauperis in an action for divorce. 

Rule made absolute. 



Be 



ALIWAL NOBTH BOABD OF BXBCUTOBS, IN 
LIQUIDATION. 

Mr. Mdteno moved for confirmation of the 
second report of the liquidators. 
Beport confirmed. 



I 



Be OE MEILLON, AN ALLEGED LUNATIC. 

Mr. Joubert moved for the appointment of a 
cmtor to take chaise of the property of the 



alleged lunatic, with power to sell the same by 
public auction, and to pass transfer[of the landed 
property to the purchaser thereof. 

The Court granted the order, and appointed 
Mr. Proudfoot curator with the powers asked 
for, full accounts to be rendered and the balance 
paid to the Master. 



SUPREME COURT. 



[Before Sir J. H. de Villisbs, K.O.M.a. (Chief 
Justice), and Mr. Justice Upington, 
K.C.M.a.] 



{ 



1896. 
BIMONB y. BDCONB. < May 10th. 

, nth. 

This was an application by Mrs. Simons, of 
the Commercial Hotel, Grave-street, for an 
interdict restraining her husband from parting 
with, pledging, selling, or otherwise dealing 
with the Commercial Hotel or the furniture or 
stock, pending the determination of an action 
brought by her for a judicial separation on the 
grounds of the respondent's cruelty and ill- 
treatment. The petitioner also prayed for the 
sum of £50 to enable her to meet the costs and 
expenses of the action. 

The petitioner, who is married in community, 
alleged that she had reason to believe that her 
husband was endeavouring to make away with 
all his property, including the hotel, of which 
the petitioner is the manageress, and that her 
reason for this belief was that last night, 
between five and six o'clock, a man named 
Naylor came into the hotel and showed the 
petitioner a document which he stated had been 
given to him by her husband (the respondent), 
appointing him sole manager of the business, and 
that Naylor caused all the money to be taken 
from the till on the grounds of his alleged 
position as manager. Under the circumstances 
she asked for an interdict. 

Mr. Shell appeared for the applicant. 

Mr. Benjamin for the respondent. 

Before the arguments had been concluded it 
was announced in court that the respondent 
had just committed suicide. 

The Chief Justice said: If the report be true 
that the respondent has committed suicide, of 
course no order can be made under these cir- 
cumstances. 



170 



Mr. Bheil : I would uk that the matter may 
be mentioned this afternoon in chambers bef<ne 
one of the judges if the report should prove to 
be unfounded. 

The Chief Justice : Certainly that can be done. 



On the following day (May 11) the applica- 
tion was renewed. The report of the respon- 
dent's suicide proved to be unfounded. 

Before the application was entered upon Mr. 
Benjamin apologised for having imparted cer- 
tain information to the Court on Friday, which, 
when subjected to investigation, turned out to 
be false. 

The Chief Justice said : Those who gave the 
instructions ought to have made fuller 
inquiries. They had no right merely upon 
rumours to come into court and prevent the 
Court from making an order which probably 
otherwise would have been made. Mr. Benja- 
min was not to blame, having stated what he 
was told to state. 

Mr. Shell put in an agreement in which 
respondent, on his wife agreeing to stay pro- 
ceedings, promised not to ill-treat her or 
beat her. He acknowledged himself as guilty 
of having ill-treated her, and made over the full 
and sole management and control of the Com- 
mercial Hotel to her to have full powers over it 
as if it were her own property ; and if he should 
lift up his hand against her in the future or ill- 
treat her or abuse her that agreement might be 
used in evidence against him. 

Mr. Benjamin said that agreement was signed 
on the understanding that the action would be 
stayed, but it was proceeded with. An affidavit 
was filed In which the respondent stated that there 
had been considerable unpleasantness between 
him and his wife, and that there was cause for his 
conduct owing to the provocation which he had 
received. He alleged that he had not beaten his 
wife. She was of dissolute and drunken habits, 
illiterate, and not competent to keep books and 
accounts. When in liquor she had been imposed 
upon by people and robbed. She had assaulted 
him in the Standard Bar, Adderley -street, and 
often given him black eyes. He had left her in 
temporary charge of the hotel a few days ago, 
but no takings from the bar of the hotel had 
been deposited in the bank. Large accounts 
had to be met, and he feared his estate was in 
danger of being placed undersequestration. He 
denied having taken steps to sell the hotel. 
With reference to the application for £60, he 
said that applicant had been in possession of all 
moneys of the hotel for some time, and in addi- 
tion, that she had robbed him of his watch and 
chain and diamond pin. 



Mr. Shell was heard in support of the appli- 
cation, and suggested that Mr. B. B. Syfret 
should be appointed by the Court to exercise a 
general supervision over the business, pending 
the result of the action. 

The Chief Justice said : The Court will 
authorise the applicant to continue the manage- 
ment of the business under the supervision of 
Mr. E. B. Syfret, pending the result of the 
action, which must be brought during tike present 
term, with leave to Mr. Byfret to deposit all 
moneys in some fit and proper bank, and to 
advance to the applicant such sums as she may 
from time to time require to meet the expenses 
of the action, such sums not to exceed £40 
in all. The costs to be costs of the cause. 

[Applicant's Attorneys, Messrs. Fairbridge, 
Ardei'ne k Lawton; ReBpondenfb Attorneys, 
Messrs. Van Zyl & Buissinn^.] 



SEALK V. BEALB. 



f 1896. 
IMay 10th. 

This was an action for divorce instituted by 
Mrs. Eluabeth Charlotte Scale against her 
husband Henry Francis Scale, a jeweller 
carrying on business in Church-street, Cape 
Town, on the gprounds of his adnltery with one 
Annie Bushby. 

The declaration alleged that the parties were 
married in community of property before the 
R.M. of Cape Town on the 26th April, 1878, and 
that the marriage was still in full fbroe and 
effect. 

That there had been issue of the marriage 
six children, three of whom were still living. 

That on divers occasions and at divers places 
between the years 1898 and 1895, but more 
particularly daring the month of March, 1896 
the defendant wrongfully and unlawfnily 
committed adultery with one Annie Bnahfay 
and with divers other persons to the plaintiff 
unknown. 
The plaintiff's prayer was for : 
(a) A decree of diroroe diMolving the 
marriage now subsisting between herself and 
the defendant. 

(h) Custody of the surviving children of the 
marriage. 
{c) Division of the joint estate. 
\d) That the defendant might be ordered to 
pay the plaintiff the sum of £26 per month, or 
such other sum or sums per month as to the Court 
might seem meet for her maintenance and for 
the maintenance, support, and education of the 
surviving children of the marriage 
{e) Alternative relief and costs. 
The defendant in his plea admitted the 
marriage and the charge of adnlteiy so far ma it 
related to Annie Bushby. 



r 



m 



With ngard to the division of the eetate he 

■vithitiiorced diviBion w^ould be detrimental 

tobothpttrti«a« and ^witlii regard to the ouftody 

oftittchUdren be sikid. tlxat in oonsideration of 

theageiof the elder oliildren (16 and 7) it would 

bemoraadnuitaKeoiiB if the children were sent 

toMhool, and he said ^uit he was ready and 

^njUng to submit to euoh judgment in the pre- 

BUMB w to the Court might aeem meet. 

After the plea bad been eerved a conaent 
ptper waa ng;ned in terms of which the plain- 
till igraed to accept £700 as her share of the 
yant eitaie, ab« to liLeep the furniture. The 
eUifl»t g^l to remain at school where ahe now Ib 
audio be allowed to visit the plaintiff during 
Wholidaya. 

The eldeat »on to be sent to a boarding sohool 
on the same termB, both ohildren to be main- 
tained by the defendant. 

The younfceet son (an invalid) to remain with 
his mother, but all medioal expenses to be paid 
by the defendant. 

The plaintiff and defendant to be at liberty 
at all reasonable times and places to have 
aeeeiB to their respective children. 
The defendant to pay the costs of the action. 
Mr. Shell appeared for the plaintiff. 
Mr. Juta, Q.O., for the defendant 
Mis. Seale was called and gave formal 
eridcDce as to the date of the marriage and 
her satisfaction as to the terms of the 



ooDsent paper. 

Private Detective Loader deposed that on the 
aiglit of 12th March last he and Inspector Hart 
followed the defendant from his place of busi- 
acaa to 3, Mount-street That he afterwards 
went to a window of one of the rooms, struck a 
matffh, and found the defendant in bed with a 
vcKBan who was not Mrs. Seale. 

By the Gourt: He could not identify the 
woman but he was sure it was not Mrs. Seale. 

The plaintiff was recalled, and swore that she 
had not slept at 8, Mount-stevet, on the night of 
mh March. 

llie Oonrt granted a decree of divorce and 
entered judgment in terms of the consent paper. 
Plaintiff to have the custody of the children. 

[Plaintiff's Attorneys. Messrs. Fairbridge, 
Aideme Sc Lawton ; Defendant's Attorneys, 
MsBHs J. C. fierrsnge ft Son.] 



SUPREME COURT. 



[Before Sir Hcnbt db Yillisbs, K.C.M.G. 
(Chief Justice), and Mr. Justice UPIKOTON, 
K.C.M.G.] 

PROVISIONAL ROLL. 



HUDSON, YBKEDS AND 00. V. 
OOOPBB. 



1 18»6. 
i May mh. 

Mr. Watermeyer applied for the final adjudica- 
tion of the defendant's estate. 
Order granted. 



LITHMAN V. HOBN. 

Mr. Graham applied for the final adjudication 
of the defendant's estate. 
Order granted. 



VISAQIB V. VISAOIB. 

Mr. Molteno moved for prorisional sentence 
on a promissory note for ;fi89B lis. lOd., with 
interest at 6 per cent from 18th December, 1894. 

Granted. 



LOOOK v. KLVTO. 

Mr. Searle, Q.O., applied for costs of suit in 
an action for transfer of certain land. Since 
the proceedings had been taken defendant bad 
signed the necessary papers to efltoot transfer of 
the land but had not paid costs. 
Granted. 



BXHABILITATIONS. 

On motion from the bar, the following reha- 
bilitations were granted : Josias Alexander de 
Kock, Frederick Osborne (release from se- 
questration). 



BBOOKFDSLD V. BSOOKFIBLD. 

Mr. Maskew moved for leave to petitioner to 
sue by edict in an action against his wife on 
the grounds of her alleged adultery. 

Order granted. Personal service to be made ; 
summons returnable on the last day of this 
term. 



NAUDB v. FBY'8 B2CB0UTBIX. 

Mr. Olose applied for leave to sos hj «dlotal 
citation in an action against the exscutriK tes- 
tamentary of the estate of the lata John Laridn 
Fry for the reoovecy of en .amount due on a 
mortgage bond. 

The Chief Justice said: Ton had bitter take 
KBorderia addition io aMMh the y o p s rty 



172 



mortgaged ad fundcundam jurisdiotionem. 
Leave will be granted to sue the defendant by 
edictal citation, personal service if possible ; if 
not, one publication in a Berlin daily news- 
paper. Date of return August 1. 



vbbhaak'b kxbcutobs y. vbbhaak^s 

BXBCUT0B8. 

Mr. Innes, Q.C., moved for the ap- 
pointment of a commission to take the 
evidence in Cape Town of Johannes A. Yer- 
maak, one of the defendants, who is about to 
proceed to England under medical advice. 

Granted. Mr. Juta was appointed commis- 
sioner. 



THI PETITION OF OBOBOB F. RAXJTENBACH. 

Mr. Close moved for the attachment 
ad funda/ndam, jurisdictiojiem of this 
Court of certain portions of the farm 
Patentie and Geelhoutboom, situate in the dis- 
trict of Humansdorp, in an action about to be 
instituted by edictal citation against Ignatius 
S. Ferreira for transfer thereof. 

Granted. Summons returnable June 12. 



IN THB MATTBB OF THB CAPS OF OOOD HOPB 

BANK. 

Mr. Innes, Q.C., moved for an order 
authorising two or more of the official 
liquidators to perform any act and 
sign any deed in connection with the liquidation 
of the said bank, and for leave of absence for 
three months to John Robertson Beid, one of 
the said liquidators, who is proceeding to Eng- 
land on private business. 

Order granted. 



JONBS V. TOWN COUNCIL OF 
OAPB TOWN. 



f 1895. 
(May 16th. 

Appeal — Privy Council — Charter of Justice, 

section 50. 

Leave given to appeal to the Privy ( Council 
where the petition had been locked with the 
Registrar and notice given to the other side 
within fourteen days from the date of the 
judgment^ but no application had been made 
to the Court within the fourteen days. 



This was an application for leave to the de- 
fendants to appeal to the Privy Council from 
the judgment of the Court on an exception 
decided in the plaintiff's favour on the 6th 
February last. 

The petition for leave to appeal was lodged 
with the Registrar, and notice given to the 



other side within the fourteen days provided by 
section 60 of the Charter of Justice, but applica- 
tion to the Court was not made until to-day. 

Mr. Searle, Q.C., and Mr. Graham for the 
applicants (defendants). 

Mr. Rose-Innes, Q.C., and Mr. Jones for the 
respondent (plaintiff) opposed the present 
application as the petition for leave to appeal 
had not been presented to the Court, although 
it had been lodged with the Registrar, within 
the fourteen days provided for by the 60th 
section of the Charter of Justice. 

The Chief Justice said : Although the objection 
raised in this application has never been previously 
formally taken, yet the Court sees no reason 
why the practice which has been adopted in this 
Court for a long period should be departed from. 
It has always been assumed if the petition was 
filed within fourteen days, and notice given to 
the opposite party of such filing,it was always open 
within three months after the filing of the 
petition to apply to the Court and give security. 
It is true that the 60th section of the Charter 
of Justice is somewhat obscure, but we feel that 
we ought to construe the provisions relating to 
appeal as liberally as possible in favour of the 
appellant. Leave to appeal should therefore be 
granted on the usual terms. 

Mr. Justice Upington said : In all my ex- 
perience I have understood that if the petition 
were lodged and notice given within fourteen 
days that was sufficient. 

The Chief Justice said : Of course it must be 
understood that our decision in this case would 
not debar any person who has obtained judg- 
ment from applying to the Court at any time to 
put it into execution. That ought to be clearly 
understood. It might perhaps be understood 
from our judgment that a par^ obtaining judg- 
ment must wait for three months before apply- 
ing for execution. 

[Applicants' Attorneys, Messrs. Fairbridge, 
Ardeme &. Lawton; Respondent's Attorneys, 
Messrs. Scanlen k Syfret.J 



DVMBITZEB V. JAC0B80N. 

Mr. Tredgold applied for an order re- 
straining the respondent from receiving more 
than half the surplus of the proceeds of certain 
land, sold in execution in the case of Eilenberg 
V. Jacobson, on the ground that the applicant 
was a partner of the said respondent when the 
property was acquired, and that title was 
erroneously registered in the name of Jaoobson 
instead of the firm ; and for an order dirooting 
the Sheriff to pay half the said surplus to 
petitioner. 

Order granted. 



173 



n TBB MATTER OP 

Mr. Close moved for 
Msiter of Uie Supreme 
to the mother of the said 
to their credit in the 
to enable her to purchase i 
•Htti in providing for their 
Older graated in terms of 



MIN0B8 SUTTON. 

authority to the 

Court to pay out 

minors an amount 

Guardians' Fund, 

a house, and so to 

maintenance. 

the Master's report. 



1896. 



O'SHKA. V. TOWK CX>UNCIL OF POBT J May 1 5th. 
KL.1ZABETH. ] „ 17th. 

( „ 20th. 

Public body — Misfeasance - N'egligence — 
Damage — Municipal draia — Adoption of 
private uiiderground drain. 

The Toum Council of Port Elizabeth^ having 
ttatdory power to make and keep in repair 
the drain* within ihs limits of the Munici- 
paiity, constructed a drain into which 
gwrface waters collected from a considerable 
area flowed^ and from which such waters 
were discharged into a surface drain in a 
pritate road belonging to H., but within the 
liimits of the Municipality. 

H., snbstiiuted a defective underground drain 
for such surface drain andy with the consent 
of the Town Council, connected it with the 
Mpper Municipal drain. 

Am obstruction having occurred in the lower 
matderground drain owing to the gradual 
accumulation of gravel and debris dis- 
charged into it from the Municipal drain, 
ike water was forced back and, escaping 
through the interstices between the bricks 
(^which had been laid without mortar J, 
penetrated unde neath the foundations of 
the plaintiff's stores, into his stores and 
damaged his goods. 

In an action against the Town Council for 
damages. 

ELeld, that the adoption as part of the Munici- 
pal drainage system of a defective drain 
was as much an act of misfeasance as if the 
Town Council had itself constructed the 
drain, that the discharge of water and 
gravel into such a drain without the precau 
Hon of from time to time inspecting and, if 
necessary, cleaning it was an act of 
negligence, and that the Town Council was 
liable for damages which might reasonably 
have been foreseen cut likely to be caused by 
suck negligence. 



This was an action for damages instituted by 
Henry 0'8hea. trading under the style or firm 
of O'Shea k, Co., against the Mayor, Councillors, 
and ratepayers of Port Elizabeth. 

The declaration was in the following terms i 

1. The plaintiff is a wool-presser and pro- 
duce merchant, carrying on business at Port 
Elisabeth under the style or firm of O'Shea k 
Co. The defendants are a public body, incor- 
porated under the title aforesaid by the Act 14 
of 1868, and will be referred to hereinafter as 
the Council. 

2. By section 36 of Act 14 of 1868, it is pro- 
vided that the Council shall have power and 
authority to make and keep in repair sewers 
and drains within the limits of the Port Bliia- 
beth Municipality, and by section 23 of Act 8 of 
1881 the duty is imposed upon the Council of 
seeing that due provision is made in every plan 
submitted to them by persons desirous of selling 
lands in sub-divisions within the municipal 
limits for the efficient drainage of such lands. 

3. The plaintiff is the lawful occupier by lease 
from the Port Elizabeth Harbour Board of certain 
land and buildings situated at the comer of Har- 
ries and North Union-streets, and marked as 
"O'Bhea's Stores " upon the plan annexed to 
this declaration. The said premises form por- 
tion of certain land registered in the name of 
the said " Harbour Board " and which has been 
sub-divided by the said Board with the consent 
of the Council into blocks. The said premises 
and the c^aid land fall within the limits of the 
Port Elizabeth Municipality. 

4. In former years an open drain ran down 
Harries-Btreet for the purpose of canying off 
surface water and other drainage flowing down 
and along Military-road and North Union-street, 
and so into Harries-street, as marked upon the 
said plan. 

6. Thereafter, though the plaintiff is not able 
to give the exact date, the said Harbour Board, 
with the knowledge and consent of the said 
Council, filled up the said open drain and con- 
structed an underground covered drain along the 
whole length of Harries-street. By agreement 
with the said Council the said drain was con- 
nected with a covered drain in North Union- 
street, constructed by the Council, and the said 
Council further caused the water in certain open 
drains or courses running down the Military- 
road to be conveyed into the North Union-street 
drain and thence into the drain along Harries- 
street, and thence to the sea. 

6. It was and is the duty of the defendant 
Council to take all due and proper measures, 
and to construct all necessary drains, for the 
effectual drainage of the locality in question, 
and more especially to construct the said drains 



174 



and works h«i«inbef ore ipeoifled, or to oftose 
them to be oonstmoted in a proper, workman- 
like, and efficient manner, so as to carry off the 
water flowing into them without detriment to 
the adjoining property, and farther, to maintain 
them, or cause them to be maintained in a 
proper and efficient condition. 

7. Due and proper measures were not taken 
by the defendant Oouncil for the effectual drain- 
age of the said locality, and the said drains and 
works were not constructed in a proper manner 
as aforesaid, but were negligently and unskil- 
fully and impioperly constructed, and were not 
maintained in a proper and serviceable condi- 
tion. 

8. On or about the 38rd November, 1894, the 
said drains became blocked, and large quanti- 
ties of water escaped from the said drains, and 
flowed into the premises occupied by the plain- 
tiflf, as aforesaid, and damaged the said pre- 
mises, and the goods contained in them. The 
said damage was caused by the negligent and 
improper conduct of the defendant Council in 
regard to the construction and maintenance of 
the drains and works aforesaid. 

9. On the said date the plaintiff had on his 
premises certain wool, skins, and other produce 
belonging to himself, and also certain mohair, 
wool, and other produce belonging to third 
parties with whom he had contracted to press, 
sort, and ship the said wool, mohair, and other 
produce. The plaintiff submits that he, as being 
liable under the said contract to fthe owners of 
the articles aforesaid for any damage resulting 
to them, is entitled to recover the amount of the 
said damage from the defendant Council. 

10. The plaintiff caused the said produce to 
be removed and dried, and caused steps to be 
taken for it« preservation, and he thereafter 
caused some of it to be sold after due survey. 
The defendant Council were informed from 
time to time of the action taken by the plaintiff 
as aforesaid. 

11. The plaintiff annexes hereto a memoran- 
dum of account marked B, showing the particu- 
lars of the loss and damage caused as aforesaid 
to his own produce, and also a memorandum 
marked C, showing similar particulars in regard 
to the remaining articles. 

12. The plaintiff has demanded from the 
defendant Council payment of the sums of 
£166 48. 3d. and £990 16e. 7d., being the total 
damage as shown by the respective memoranda 
aforesaid, but the said Council refuses to pay 
any portion of the said accounts 

The plaintiff claims : 

(a) Payment of the sums of £166 4s. 3d. and 
£990 16a. 7d. for damages as aforesaid. 
(5) Further relief. 



(e) Coats of suit. 

The Connoil filed the following plea : 

1. The defendants admit tha fliat and second 
paragraphs of the declaration. 

2. As to paragraph 8 of the declaration, the 
defendants deny that the land registered in the 
name of the Harbour Board has been sob- 
divided by the said Board into blocks with the 
consent of the defendants. They say the sub- 
division of the said land into blocks was made 
prior to the promulgation of Act 8 of 1881, and 
that no plan of such subdivision was ever sub- 
mitted to them by the said Harbour Board. The 
defendants admit the other allegations in the 
third paragraph. 

3. The defendants deny the fourth paragraph 
of the declaration. 

4. As to the fifth paragragh of the declaration, 
the defendants admitl that the said Harbour 
Board constructed an undergroundtoovered drain 
along the whole length of Harries-street, and 
connected the said drain with the covered drain 
in North Union-street constructed by the Coun- 
cil. They further admit that all the water 
running down the drain in North Union-street 
would flow into the drain down Harries-street, 
and thence into the sea. Save as is herein 
admitted the defendants deny the fifth para- 
graph of the declaration. 

6. The defendants further say that the said 
Harries-street is a private street made and 
maintained by the said Harbour Board, and 
situate on the aforesaid property registered in 
the na*ne of the said Board, aoil no way under 
the control of the Council. They further say 
that the drain down Harries-street was made 
and has been maintained by the said Board, and 
that there is no duty cast on the Council to con- 
struct drains on the said property of the said 
Board for the effectual drainage of the aaid 
property, or to properly maintain any drains 
made on the said property of the said Board. 

6. The defendants admit that on the 23rd 
November last water escaped from the said 
drain down Harries-street and flowed into the 
premises occupied by the said plaintiff. They 
say that the escape of the said water was not 
due in any way to the negligent construction or 
maintaining of any drains constructed or main- 
tained by the Council. They say that by reaaon 
of the premises they are not liable for damage 
caused by the escape of water from the drains 
in Harries-street, and that if any damage has 
been sustained by the plaintiff by reason of the 
water escaping from the said drain in Harries- 
street through the negligent or improper con- 
struction or maintenance of the said drain, such 
damage should be claimed from the said Board 
and not from the defendants. 



175 



7. For a farfher plea sbould this Honourable 
Court hold that the defendants are reBponsible 
for the eonBtraction and maintenance of the 
drain in HarHes-Btreet, and that it was the duty 
of the defendants to construct all necessary 
(trains for the eSectnal drainage of the property 
Rgiftteted in the name of the said Board, the 
defendants aay ; 

8. That all necessary drains for the effectual 
drainage oi the said property were constructed ; 
that the Bftid drains, including the one down 
Harries-street-, were constructed in a proper and 
effioent manner, and were maintained in a 
proiKT and efficient condition. 

9. The defendants further say that the escape 
ot water referred to in the 8th paragraph of the 
declaration was not due to the negligent and 
improper conduct of the defendants in regard to 
the oonstraction and maintenance of the said 
drains. 

10. The defendants, save as hereinbefore 
admitted, deny the 6th, 7th, and 8th paragraphs 
of the declaration. 

11. The defendants further say that there was 
aeg^igeDce on the part of the plaintiff in the 
efcoiing of the said wool, mohair, and other 
IKTodnoe. and in the construction of the premises 
in which the said wool, mohair, and other 
prodnce were stored, which were wholly unsuit- 
able for the storage of such articles. The 
defiendanta say that by such negligence the 
plaintiff contributed to, and was the cause of, 
the damage complained of. 

12. As to paragraph 9 of the declaration, the 
defendants say that the plaintiff is not liable to 
the third parties referred to in the fifth para- 
graph for any damage caused by the escape of 
the aaid water to the wool, mohair, and other 
IHXMluce belonging to the said third parties and 
on the plaintiff's premises. The defendants say 
the plaintiff is not entitled to recover from the 
defendants any damage caused to the goods of 
raeh third parties by the escape of the said 
water. 

13. The defendants admit the tenth paragraph 
of the declaration, but as to the eleventh para- 
graph, they do not admit the accounts therein 
referred to. They deny that the plaintiff has 
rastained any damage. 

14. As to paragraph 12 of the declaration, the 
defendants admit that they refuse to pay any 
portion of the accounts referred to in the 5th 
Paragraph. 

Wherefore the defendants pray for judgment 
vitheostfl. 

IiBue was joined on the replication. 

After the replication had been filed, a consent 
psperwas signed, in terms of which the damage 

A3 



sustained by the plaintiff was admitted to be 
£156 4s. 3d., and the damage done to the pro- 
duce of the third parties £672 12s. dd. Ko ad- 
mipsion of liability was, however, made by the 
Town Council. 

Mr. Rose-Innes, Q.C., and Mr. Benjamin ap- 
peared for the plaintiff. 

Mr. Solomon, Q.C„ and Mr. Searle, Q.C., for 
the defendants. 

Mr. Juta. Q.C., watched the case on behalf of 
the Port EliKabeth Harbour Board. 

Henry 0*Shea, the plaintiff, deposed that he 
was a produce dealer and wool presser, and 
occupied the premises in question under lease 
from the Harbour Board. On November 21 
last there was a considerable fall of rain in the 
afternoon. Next day there was a little, and at 
night it rained heavily. On November 23, be- 
tween seven and eight o'clock in the morning, 
he received information which caused him to 
visit his store. His store was divided into two 
sections by a wall. One portion of his store was 
lower than the other. There was a considerable 
slope of the street. The floor of the lower sec- 
tion of his store below the dividing wall was 
cemented. The upper portion had a earthen 
floor. On November 23 he had produce stored 
in both compartments of his building— the pro- 
duce consisting of mohair, skins, ko. In the 
lower section the produce was stored upon the 
cement floor. In the upper store a layer of 
planks kept the produce off the ground. His 
produce had always been stored in that way. 
When he got to the store he found both cellars 
flooded with water. In the upper cellar there 
were 5 inches of water, and a stream of water 
was running from the door of the lower cellar. A 
quantity of water had evidently drained 
through the dividing wall. The water was 
bubbling up from the street nearly oppo- 
site. In a store opposite to his water 
was being bailed out, and a Harbour Board 
official was there. Men were beginning to open 
up the drain at a place where it was covered 
with sleepers — a break in the ordinary arching 
of the drain. The sleepers were so placed that 
water could force its way through them. The 
block was found SO or 40 feet lower down. The 
block was firm, and some of it evidently of 
great age. The obstruction extended about SO 
or 40 feet. He noticed the water was coming 
in by a crack between the cement floor and the 
wall in the lower cellar. No water came in at 
the door. The floor of the lower cellar was 
S or 4 feet below the level of the street, and that 
•f the higher cellar about a foot below the street 
level. On the 24th the obstruction had not 
been removed— there was still water in the drain, 
and the water was still oosing in. 



176 



Cross-examined by Mr. Solomon, Q.C. : The 
streets were always repaired by the Harbour 
Board when he first took over the property. He 
spoke to the Harbour Board official at the time 
he discovered the damage— he did not then 
know who was the proper person to report to. 
Mr. Heenan, the engineer of the Harbour 
Board, had not told him or his partner, Mr. 
O'Connor, that the floor of the upper store 
was not a proper store for storing 
goods. If the floor of the upper 
oellar had been cemented the water 
would have got in just the same. The rain- 
storm on NoYember 21 lasted a quarter of an 
hour, and nearly an inch of water fell. It 
carried a quantity of road de'bris down the steep 
streets. The Harbour Board men opened up the 
drain and afterwards repaired it. It was a 
barrel drain 2 feet 6 inches diameter. He 
thought the water forced its way through the 
manhole — ^he did not t^ink the drain was 
broken. Much of the stuff which blocked up the 
drain was quite new stuff which had been 
washed down by the heavy storm of November 
21. The block was all of gravel, no bushes or 
weeds. A very small proportion of the damaged 
goods were stored in the upper cellar — between 
£200 and £300 worth of goods were stored there. 
He often stored in the upper cellar without 
"dunnage." 

By the Chief Justice: Dunnage would keep 
goods 3 or 4 inches above the floor. Damage 
would have been done even if dunnage had been 
used. Much of the produce injured was stored 
on dunnage. 

Josephus Winter, builder. Port Elizabeth, said 
he had inspected the drain on November 24. A 
portion, 200 to 300 feet in length, was blocked 
extending to beyond Commerce-street. It must 
have been accumulating a very long time. No 
cement or mortar had been used in the drain — 
simply dried bricks. The perpendicular joints 
were open i to ^ of an inch, so that the drain 
was quite porous. The bricks were specially 
made to fit. The bricks in his opinion were 
not made to hold water. 

The Chief Justice : To hold what then, gravel ? 

Witness (continuing) said the manholes were 
covered with wooden sleepers ; they should have 
been covered with an iron cover. 

Cross-examined by Mr. Solomon, Q.C: The 
drain was made thirty-two or thirty-three years 
ago. The block was not continuous the whole 
200 or 300 feet, but there were several complete 
blocks in that distance. The stuff in the drain 
for a depth of 12 inches was quite black and 
old. If the drain had been cleared before the 
rain, there would have been no block. He did 
jiot think there pould have been wat^r iesuiiig 



from the mouth after the block. The mouth 
was blocked by sand and rubble from the sea. 
He did not think the water had forced its way 
through the manhole to get through into the 
cellar, but through the open joints of the drain 
itself. It was a well -constructed drain, but 
ought to have been cemented. He thought that 
though even cemented, it was just as liable to 
have become blocked. If the water could not 
have got through the spaces of the bricks the 
drain would have burst. The foundations of the 
store were very fairly constructed, but at 
one place they were badly built, and water 
could have got through easily. If there had 
been a rush of water through the street, the 
foundations would not have kept all the 
water out. Without drainage the upper 
cellar floor was not a proper place to store 
goods in. 

Re-examined by Mr. Innes, Q.C. : When the 
drain was oonstructed much of the water that 
now went into it was led another way. The 
drain was large enough for the purposes for 
which it was intended. The ground on which 
the store was built was formerly swampy. 

Alexander Fettes, builder and practical 
mason, said he examined the drain soon after 
November 21. The perpendicular joints were 
very open. The block at the mouth was to the 
•xtent of more than half its diameter. He did 
not think the drain was well made, being with- 
out cement. He thought the water was forced 
into the store through the manhole and the 
joints of the bricks. 

Cross-examined by Mr. Searle, Q.C. : He had 
never seen bricks of the kind of which the drain 
was made used in the same manner as in that 
drain. 

By Mr. Justice Upington : He did not con- 
sider the manhole a proper one. 

George Dix Peek, architect, of Port Elizabeth, 
put in a plan showing the drain and the area 
which was drained into it. There was a grating 
at the smaller or southern entrance to the drain. 
All the other sluits flowed into the drain with- 
out any gratings. Very nearly all the area 
served by the drain was the natural area. He 
inspected the drain about December 15. He did 
not think the drain was properly laid — it should 
have been cemented. He thought the obstruc- 
tion was about 60 feet in length. He believed 
the whole drain had 8ubT>ided there. He did 
not think the drain was large enough for the 
area drained, and the fact of its being in two 
different shapes in different part-s was a dis- 
advantage. The manholes were mere apologies. 
Considering the weight of water in the drain, 
it must have spurted from the joints as from a 
broken hose. The foundations of the store 



irf 



were sufficient for the purposes of the building. 
He had Buperintended the building of some 
portions of the store in 1870. 

Crews-examined by Mr. Searle, Q.C. : The 
drain did not exist in 1870, so far as he knew, 
down Harries-street. It did not matter very 
moch whether the grating in question was 
open or not, though, as a matter of fact, in 
heavy rains the gratings of the drains in Port 
Blixabeth were opened. The subsidence of the 
drain did not alter the capacity of the drain, 
thouKh it would not improve its capability 
of carrying off the water and sand. 
Very nearly half the diameter of the drain was 
filled with very black, ill-smelling stuff. He 
did not think if the drain had been cemented it 
would have burst ; it would have filled up to the 
entrance and then flowed across the street. 
The gradient of the drain was really more 
than sufficient in many parts. 

Be-ezamined by Mr. Innes, Q.C. : The floor of 
the upner cellar was 1 foot 4 inches below the 
level of the street, and that of the lower cellar 
3 feet. 

By Mr. Justice Upington : The drain in ques- 
tion was different to the general drainage of the 
township— it was worse. Generally, however, 
the drains of the Port Elizabeth township were 
not large enough. 

By the Chief Justice : The immediate cause of 
the flooding was the neglect of whoever was re- 
sponsible for the cleaning of the drain where it 
crossed Commerce-street. He could not swear 
as to whether the men who were cleaning the 
drain in December last, when he saw them, were 
Harbour Board or Corporation workmen. 

Mr. Innes here put in a copy of a diagram 
attached to the original grant in 1863 of that 
ground to the Harbour Board. 

James Searle, manager of the Boating Asso- 
ciation, said he had known the locality very 
well since 1868. Then the water used to flow 
down Military -road to the sea. There was a 
tluit where Harries-street now was, but part of 
the drainage flowed on the other side of 
0'Shea*s store After buildings had been put 
up, it all flowed down Harries-street. Part of 
the drain down the upper end of Harries-street 
was built early in 1860 or 1862, but the rest was 
an open drain for many years after. Mors 
water went down that drain than used to be the 
case. The drain had been choked two or three 
times, and had done damage to property— once 
to the Boating Company's store. 

Cross-examined by Mr. Searle, Q.C. : If the 
old open drain in Harries-street had been left, 
he did not think heavy rainfalls would have 
flooded 0*Shea*i store. The Boating Company 
mide no claim for damage when their store was 



flooded. An open drain in Harries-street Would 
be a nuisance and dangerous. The land in that 
neighbourhood had been sub-divided into blocks 
by the Harbour Board long before 1881. 

Re-examined by Mr. Innes, Q.C. : The streets 
of the neighbourhood were public streets, lighted 
by gas by the Municipality. All the stores in 
that neighbourhood had been considered proper 
for storing wool. 

John Ellwood, storeman, Schofield & Co.'s 
store, on the opposite side of Harries-street 
to O'Shea's, said that he considered the bottom 
cellar of O'Shea's a fit place to store wool in, 
and the top one if there was dunnage on the 
floor. On November 23 water flowed into his 
firm's store. The presshole was filling up fast, 
the water getting into the presshole through the 
brick and cement sides, or bottom. He saw 
O'Shea's store before Mr. O'Shea on the morn- 
ing of the 23rd, and then there were fully twelve 
inches of water in the upper chamber. There 
was a considerable flow of water coming through 
the partition wall. Water was always bubbling 
up in the street. He had never seen that drain 
opened in Harries-street during the nine years 
of his recollection of it. 

Cross-examined by Mr. Solomon, Q.C. : When 
the drain was opened there was more old debris 
taken from the drain than new. Harbour 
Board men cleaned out the drain. 

The correspondence having been put in, Mr. 
Innes closed his case. 
For the defence, 

Nelson Girdlestone, secretary to the Port 
Elizabeth Harbour Board since 1876, said he had 
examined the records of the Board, but could 
find no records of the construction of Harries- 
street, though in 1866 it was resolved that the 
street should be made. In 1867 a section of the 
proposed drain in Harries-street was ordered to 
be made. There were no allusions in the records 
to the connection of the Harries-street drain 
with the Municipal drain across North Union- 
street. Since he knew the Harbour Board it 
had had control over the streets running over 
the Harbour Board property. Harries-street 
was wholly on the Harbour Board property. 
O 'Shea's partner had been warned not to pat 
periiihable goods into the upper cellar because of 
the natural dampness of the ground. 

Cross-examined by Mr. Innes, Q.C. : There 
had been no serious conflict between the Har- 
bour Board and Town Council with respect to 
the divided control over certain streets. In 
March, 1880, he wrote to the Town Council that 
the Fleming-street drain was a Municipal drain 
on Harbour Board property. Harries-street drain 
was on all fours with Fleming-street drain. 



i?8 



By the Chief Justice : The Harbour Boa^d 
cleaned the drain after last NoYember's block, 
hetfause it was damaging the Harbour Board 

roperty. 

William P. Finn, Town Clerk of Port Eliza- 
beth for the past seventeen years, said there 
was no record of the connection between Harries- 
street and Unioa-street drains. The Town 
Council had spent no money on, nor ever exer- 
cised any authority over, Harbour Board streets 
or drains. Repairs were effected at the comer 
of Harries-street in 1888 by the Harbour Board 
men, the Council paying half the cost. The 
Municipal regulations as to buildings did not 
apply to Harbour Board property. No plan of 
the sub-division of the Harbour Board's 
property was ever submitted to the Council. 
Large quantities of debris were washed into the 
drains by the heavy rain of November 21. 

Cross-examined by Mr. Innes, Q.C. : The 
Council never took any steps to interfere with 
the Harries-street drain. 

Mr. Robert Hammersley Heenan, engineer 
and general manager to the Harbour Board, 
said the Board had always exercised control 
over the streets and drains on their property. 
The flow at the outfall of the drain 
had always seemed quite free, and they 
had always taken that as an indication that the 
drain was fulfilling all its functions. He had 
inspected the drain when it was opened up, and 
considered it was a properly constructed drain — 
quite good enough for the purposes for which it 
had been made. He did not know of bis own 
knowledge that the Harries-street drain had ever 
been cleaned. When it was opened most of the 
d^ris causing the block was new. It was 
essential that there should be a covered drain in 
Harries-street or the traffic would be interfered 
with. 

Cross-examined by Mr. Innes, Q.C. : If the 
drain had been cemented and had then blocked 
it would haye burst with the great pressure of 
water — at least that was his belief considering 
the heavy gradient. The drain was of sufficient 
capacity to carry off the water which was led 
into it. He agreed that the drain might have 
been better if it had been cemented. If he had 
been constructing it he would have laid the 
bricks in cement. 

Charles Arthur Cotter, superintendent of 
works for the Port Elizabeth Town Council, said 
that on November 21 three-quarters of an inch 
of rain fell in half an hour. .He took no part in 
the operations of opening the drain, and had 
never taken any part in the inspection of the 
Harries-street drain. 

Cross-examined by Mr. Innes, Q.C. : Three 
drains ran into the Harries-street drain, one of 



which was of larger diameter than the Harries- 
street drain, which was scarcely a proper ar- 
rangement. 

By the Chief Justice : Harries-street drain 
was smaller than most of the Municipal drains, 
but the catchment area of the others was much 
larger. 

John Mcll wraith, produce dealer, Port Eliza- 
beth, a member of the Town Council, said that 
during the space of time in which the rain was 
falling he considered the fall was larger on 
November 21 last than at any other period of 
his recollection. The Town Council had never 
interfered with the Harbour Board property and 
had always considered the Board responsible for 
occurrences there. The debris taken from the 
Harries-street drain was largely new— the sedi- 
ment being very slight indeed. It was evidently 
a fresh deposit. The catchment area of the 
Harries-street drain was a perfectly natural one. 
The Harbour Board always repaired the streets 
on their own property. It was highly improper 
to store skins on an earthen floor. The water had 
forced its way through the earthen floor in the 
upper cellar, and got into the lower cellar 
through the partition wall. No water would 
have got into the cellars if the floor of the 
upper cellar had been cemented. 

Cross-examined by Mr. Innes, Q.C. : Much of 
the stock was lying without dunnage in the 
upper cellar. There was nothing offensive in 
the drain ; the debris was almost entirely clean 
gravel. 

William Clements, outside foreman to the 
Harbour Board, assisted to open the drain, and 
found it full of fresh clean gravel, save, per- 
haps, an inch to two Inches of sediment at the 
bottom. There was no smell. Every day the 
sea outlet was cleaned. 

Cross-examined by Mr. Innes, Q.C. : He had 
never known the drain cause trouble before. 

John Watson, platelayer to the Harbour 
Board, said he went down to the mouth of the 
Harries-street drain on November 21, and saw 
the wat«r flowing very rapidly from it. The 
debris was very clean. 

Cross-examined by Mr. Innes, Q.C. : They had 
to pick the d6bris with a pickaxe to loosen it at 
the bottom. 

James Head, deputy foreman of the Harbour 
Board, said he had been in the employ of the 
Board for the last four years. One of his duties 
was to watch the outlet of the Harries-street 
drain. Beyond the need for clearing out the 
mouth the drain never showed any sign of 
requiring cleaning. On November 21 he 
noticed the water coming out of the mouth in a 
full stream. There was no indication of its 
being choked. 



179 



Crow-examined by Mr. Innes, Q.C. : There 
were no stated times for cleaniag out the 
mouth — ^when they ^w^ere slack of work the men 
woold go round and clean out the mouth of the 
dr&in. 

By the Chief Juatice : The water was running 
oat of the month freely after the storm was 
over. 

Ciois-examined by Mr. Innes : He could not 
ieeif thewater was Bowing out to the full capacity 
of the drain. The water was cutting a furrow 
in the sand and eeemed to be coming out freely. 
Charles Clements, deputy foreman mason 
to the Harbour Board, said he went to the 
drain the day after it was opened by the work- 
men, and assisted in opening it lower down the 
street. He had examined the stuff taken out 
of the drain. It was street gravel, and there 
was Tery litUe sediment. The drain was a well- 
made one, of good bricks. He connected the 
open drain in Commerce-street to the Harries- 
street drain about three years ago. There was 
■ot much snrface water from the open 
drain in Commerce-street to the Harries-street 
drain. The North Union-street gutter joined 
the Harries-street gutter, and the water of those 
gaiters and of the Commerce-street gutter 
flowed into the Harries-street drain at the other 
side of Commerce-street. These gutters would 
not fill up the drain. 

The evidence of Thomas Reeve, clerk of works 
of the Port Elizabeth Harbour Board, taken on 
commission, was then read by Mr. Searle, Q.C. 
It was to the effect that he had been employed 
by the Harbour Board for the past seven years. 
He had in the course of his duty to do with the 
metalling of the streets on the Harbour Board 
property. The Town Council had done nothing 
to repair the streets on the Harbour Board 
property save at the junction of Town Council 
and Harbour Board property. The Harries- 
street drain was an old one, and there had been 
no other stoppage of it than the one of Novem- 
ber 23 last in his recollection— had there been 
one it would have been his duty to have re- 
moved the stoppage. The Harbour Board work- 
men opened the drain after the blockage on 
November 23. He was quickly on the spot after 
the report of the blockage and found water 
OQsing out of the street surface in several places 
above 'Shea's store door. He got a gang of 
men and had the drain opened, and found it had 
been blocked for twenty -five yards. The water 
was oosing out some distance above the stop- 
page. The d^ris in the drain was fresh matter. 
The drain was a round barrel drain and had 
aiwayscarriedoff all the water required of it. 
There was nothing defective in its construction, 
audit was in a good, sound condition. The water 



that got into 0*Shea's store he believed entered 
through the foundations. He believed it got 
into the lower cellar through the partition wall. 

Cross-examined tiy Mr. Innes, Q C. : All 
the streets of the Harbour Board property 
were freely used by the general public. The 
heavy fall of rain on November 21 must 
have wnnhed a large quantity of gravel into the 
drain. It was not the usual practice to lay 
drains without cement ; though he did not know 
if the drain in quefetion would have served its 
purpose better if it had been laid in cement. 
The drain had not " sag(<ed " very much. The 
bricks of the drain fitted closely all round. 

Mr. Rose-Innes, Q C, in support of the plain- 
tiff's case: The powers and duties of the 
Council are set out 11 Act 14 of 1868, section 36. 
The Council exercises all the powers conferred 
by the repealed Act 31 of 1860 and by the 
Ordinance 9 of 1836, sections 45 and 46. 

The law is clear that where a public body 
undertakes the construction of work which is 
permissive, though not obligatory, the public 
body is liable for. damages occasioned by its 
misfeasance. Jordaa?i v. 'The Worcester MunU 
cipality (» Sheil, 195) ; Manvel v. Tofvn Council 
of Cape Tan-n (Buch. 1877, p. 107). 

If the Harries-street drain had been con- 
structed by the Municipality its liability could 
not be questioned, and inasmuch as they 
approved of or, at least, consented to the oon- 
struction of that drain, and allowed, by connect- 
ing the Municipal drains with that drain, 
Municipal water, which caused the damage, to 
tiow into it. they are equally liable. The 
Municipality practically adopted the Harries- 
street drain and they cannot escape liability 
by leading their water to the junction of the 
two drains and then leave it there careless as to 
the result. It was al«o the duty of the Munici- 
pality to have kept the Harries-street clear of 
obstruction, and if the Harbour Board did not 
do it, the Municipality might have entered on 
their land for that purpose. Liidolphtmd Others 
V. Wegner and Others (6 Juta, 193). As to the 
rights and duties of the dominant tenement, 
see Burge (Vol. III., p. 444) and Voct (8, 4, 16). 

The drain itself was not large enough to carry 
off the water from the area drained. Three 
drains run into the Harries-street drain One 
of them is 2 feet 8 inches in diameter and the 
Harries-street drain is only 2 feet 7 inches in 
diameter. Again the manholes were not properly 
constructed. The bricks used in constructing the 
drain should have been laid in cement. 

As to the plea of contributory negligence, the 
onus is on the defendants. 

Mr. Solomon, Q.C, for the Municipality: The 
Municipality being a creature of Statute its 



l80 



dutieB and obligatioDs must be gathered from 
the Statute to which it owes its exist-ence. The 
Harriee-street drain is a private drain on 
private property, and no control over such drains 
is vested by Statute in the Municipality, nor has 
it any right to interfere with what the Harbour 
Board does on its own property. The law as 
laid down in Jorda^n v. The Worcester Munwi- 
polity and Manuel v. T?ts Tonm Council of Cape 
Tbftn is not disputed, but in the present case 
there was no misfeasance on the part of the 
Municipality. See Thompson v. Mayor of 
Brighton (L.R. (1894), 1 Q.B.D., 332). The 
proximate cause of the damage was the 
stopping of the drain, and this "was caused 
through the negligence of the Harbour Board, for 
which the Municipality cannot be held liable. 

To succeed the plaintiff must prove 
misfeasance on the part of the Municipality, 
and in that he has failed. There is no evidence 
of any negligence in connection with the drains 
that pass over Municipal ground. The Munici- 
pality has no right of property in Harries-street, 
or in the drains underneath it, nor have they 
any right to enter on Harbour Board property. 
lAtdolph V. Wegner has no application to the 
present case, as it was clearly for the benefit of 
the upper proprietors that they should go on the 
land of the lower proprietors and remove the 
obstruction which was causing the injury. 

In the absence of neglect of a statutory duty 
the Municipality cannot be held liable. 

The plea of contributory negligence is not 
relied on. 

Mr. Rose-Innes, Q.C., in reply: The case of 
TTiompfon v. Mayor of Brighton would not be 
followed by this Court, as it would virtually 
overrule Hume v. Cradoch Divisional Council 
(1 B.D.C., 104). 

A Municipality although created by Statute 
has common law rights and liabilities. 

Under Ordinance 9 of 1836, the property of 
and in all . . . . sewer, drains, watercourses 

inn abowtt or belonging to the said 

streets or place :< within the limits of the 
Municipality was vested in the Commissioners 
and has been transmitted to the defendant 
Council. 

Cur, ad wit, 

Postea (May 20th). 

The Court delivered judgment. 

The Chief Justice said : This is an action 
against the Port Elizabeth Town Council for 
damages caused to certain produce in the plain- 
tiff's stores by reason of an escape of water 
from the Harries-street drain which found its 
way underground into his stores. It appears 
from the evidence that at some time between 
the 20th and the 23rd of November last the drain 



became choked below the plaintiff's stores, with 
the res>ult that rainwater flowing down in the 
drain was thrown back, and, owing to the pres- 
sure from above, forced itfi way underground in 
different directions. Some of the water was 
forced upwards into the street at the junction 
of Harries-street with North Union-street, » 
considerable quantity bubbled up in Scholefield'a 
stores opposite to those of the plaintiff, and a 
still larger quantity penetrated underneath the 
foundations of the plaintiff's stores and then 
rose in the stores. The amount of damage done 
to the produce is admitted to be £828 178. Part 
of the produce belonged to thir d parties, and 
although the ploa denies the ^Tstntiff's right 
to sue for damage to goods not belonging to 
him, that objection has since been withdrawn. 
There were two manholes in the drain, one being 
opposite to the plaintiff's stores and the other 
lower down. One of the witnesses believes that 
the water escaped through the upper manhole 
but although some of it may have thus escaped, 
the greater part, in my opinion, was foroed 
through the open interstices between the bricks 
of which the drain had been constructed. In- 
stead of cement mortar being used, the drain 
had been constructed without any mortar bind- 
ing at all. No one seems to know when the 
drain was constructed, but it is common cause 
that it was made, not by the defendant Council, 
but by the Harbour Board, some time after an 
upper drain, which now discharges its contents 
into the Harries-street drain, had been made by 
the defendant Town Council. This upper drain 
receives the surface water naturally flowing 
down from a considerable portion of the Muni- 
cipal area. It also receives water which has 
been diverted from its natural course down 
Bird-street towards the sea. Before the Harbour 
Board constructed the lower, or Harries-street 
drain, the water so discharged from the upper 
or Municipal drain, found its way down Harries- 
street into the sea in a surface drain. No 
records exist to show when or by whom the 
junction between the two underground drains 
was made. That it must have been made with 
the full consent of the defendant Council is 
clear from the fact that seven years ago repairs 
were effected at the junction at the joint expense 
of the Council and the Harbour Board. Neither 
body ever deemed it its own duty to clean or 
even to inspect the Harries-street drain. One 
of the plaintiff's witnesses (Mr. Searle) remem- 
bers this drain to have been choked before 
and on one occasion to have burst at the part 
where it crosses Commerce-street, causing con- 
siderable damage to the stores of the 
Boating Association. Another witness says 
that the drain is not of the same construction 



181 



thiwghout, being ou-oular above Commerce- 
iti^tandflat-bottoxxiea. l>elow. The obfltruo- 
tim in NoYember las'fc fLpi>ear8 to have originated 
it Commerce-BtTee't. O w rug to the use of insuffi- 
dent grating at the points where the Municipal 
nrface vater exxters tlie Municipal drain a vast 
qoantity of gravel and. debris came into the 
HirneBrBtreet drain, and accumulated under- 
netth CoHimeroe-Btreet. The accumulation 
wuflo ^eat tbat it filled the barrel drain up to 
the crown for a distance, according to the 
defendant Council^s cwn witneeses, of over 25 
feet. The plaintift's witnesses say that the 
distance was atill greater. Much conflict of 
evidence exists as to the nature of the sediment. 
Some oi the plaintifiE^s witnesses say that there 
vaa an old aedinaent nearly half the diameter of 
the drain, whereas most of the Coun- 
dl'a witneBses affirm that nearly all the 
stuS taken out of the drain after the accident 
was fresh gravel. I am bound to say that 
whenever there is a conflict of evidence I attach 
greater weight to the plaintiff's witnesses, who, 
with the exception of the plaintiff himself, are 
wholly unconnected with the case, whereas all 
the defendants* witnesses are officials either of 
the Town Council or of the Harbour Board. I 
am of opinion that the obstruction was caused 
by a gradual accumulation of d^ris until the 
heavy rain of the 21st of November, when the 
vast quantity of gravel and debris coming down 
into the Municipal drain meeting the former 
accumulation completed the obstruction, and 
thus forced back the water into the plaintiff's 
storee. If any water was really seen flowing 
from the drahi into the sea after the storm of 
the Slst of November, that water must 
have come from the Commerce-street 
drainage as well as Harries-street surface drain- 
age, which finds its way into the underground 
drain at Commerce-street. By the evening of 
the 21st November the obstruction must have 
been complete, and any water from rains which 
fell afterwards and found its way into the 
Municipal drain, had no means of escape ex- 
cept through the interstices between the bricks. 
The defendants deny their liability for the 
damage done on two grounds. 1 here was, say 
they, no n^ligence on the part of anyone, but 
if the damage was caused by any negligence it 
was that of the Harbour Board and not of the 
Town Council The defence of contributory 
negligence has been abandoned. For the purpose 
of this case it is unnecessary to inquire whether 
any liability attaches to the Harbour Board. 
That body is not a party to this action, and can- 
Doi be affected by any decision the Court may 
arrive at. The only question we are concerned with 
it whether a good case has been made against 



I 



the Town Council I have alraady remarked 
that, until the junction between the two drains 
was made, the Council was in the habit of dis- 
charging into the Hames-street surface drain 
all the water collected from different parts into 
its own underground drain. This was the 
natural flow of the greater portion of this water, 
and the Harbour Board appears never to have 
objected to the whole of it coming down in the 
surface drain. We are in ignorance as to which 
body first suggested the construction of the 
underground drain in Harries-street ; but let us 
assume that the proposal was made by the 
Harbour Board. The Council, as the body^ 
authorised by law to make and keep in repair 
the drains within the limits of the Municipality 
(Act 14 of 1868, section 35), might have refused 
to allow any drain connected with its drainage 
system to be constructed by anyone else. It had the 
power, on payment of compensation in terms of 
section 52 of Act 14 of 1868, to make use of 
Harries-street as a MiAicipal street, and of 
course to construct its own drain underneath 
such street. If the Council did not choose to go 
to that expense, it still had the power to refuse 
any connection with the Harbour Board drain, 
unless satisfied that it was amply sufiicient to 
hold all the water that could be discharged into 
it, that it was in every respect properly con- 
structed, and that the Town Council would have 
full powers of Inspecting, -and from time to time 
cleaning the drain. There is not a tittle of evi- 
dence to show that the slightest precaution of 
any kind was taken. It was sufiicient for the 
Town Council of that day to know that there 
was an underground drain towards the sea, and 
without inquiring into the sufficiency of that 
drain, it was allowed to be connected with the 
Municipal drain. Having allowed the con- 
nection, the Town Council washed its 
hands of all responsibility for what became 
of its own collected waters after they rushed 
down the steep decline beyond Municipal limits. 
Worse than that, it took no precautions to pre- 
vent vast quantities of gravel and rubbish from 
being carried into the lower drain. That drain, 
it must be remembered, was only two feet and 
six inches in diameter, being less than the 
diameter of one of the upper drains. Instead of 
making a new and sufficient drain, the Town 
Council utilised the existing drain, and by con- 
senting to the connection adopted that drain as 
part of its own drainage system. It thus under- 
took the same responsibility for the drain which 
it would have incurred if the drain had been 
constructed by the Town Council itself. There 
is no evidence that the discharge of its upper 
drain into the Harries-street surface drain en- 
dangered any one's property. The Council, 



\ 



182 



4 



however, elected to dJBoharge its water, mixed 
with vast quantities of gravel and debris, into 
an underground channel about the nature of 
which it knew nothing. As might have been 
anticipated, the time came when the gradual 
accumulation of a sediment on a somewhat 
uneven bottom caused a complete obstruction to 
the flow of water. It is difficult to say what 
would have happened if the bricks had been 
bound by mortar. The drain might have burst or 
the water might have been forced back through 
the entrance into the Municipal drain. But no 
mortar binding was uned at all, and we know 
the result. I am of opinion that both in size 
and in the nature of its construction the drain 
was not fit for the purposes for which it was 
adopted as part of the Municipal drainage 
system, and that nuch an adoption was an act 
{feasance as much as if the Council had 
itself constructed the drain. I am further of 
opinion that the discharge of waters mixed 
with large quantities of debris into such a 
defective drain, without the precaution of in- 
specting and from time to time cleaning 
the drain, was an act of negligence. After 
adopting the "new underground drain the 
Council owed a duty to the ralfififtyers^ of 
whom t b<? p jaintitf waa one, not to discharge 
water into tes^^-^rafn without taking due 
precautions to secure its sufficiency for the 
purpose. If the Council failed, on allowing 
the connection between the two drains, to 
retain the right of inspecting and cleaning the 
lower drain, it does not follow that this right 
oould not have been insisted upon afterwards. 
It was never insisted upon, and was not even 
asked for. The Town Council having, with 
the approval of the Harbour Board, adopted 
the drain as part of its own drainage system, 
had the power in my opinion to keep that 
drain in repair. It is evident that the Council 
never desired to exercise this power. As the 
choking of the drain and the resulting damage 
to the plaintiff might reasonably have been 
anticipated from the Council's negligence in 
discharging its water, gravel, and debris into a 
defective drain without due precautions airainst 
injury, I am of opinion that the defendant Council 
is liable in this action, and that judgment must 
be given for the plaintiff for £828 17s. with costs. 
I have not cited any authorities bearing on 
the legal questions raised in argument, because 
that has already been done in the case of 
Jardaan v. Worcaier Mnnicipality* It was 
there pointed out that the non-feasance of a 
duty imposed by law on a public body may, 
under certain circumstances, render such body 
liable for resulting damages, and that our own 

•3SheU,195, 10Juta,159, 



law does not altogether agree with the law of 
Kngland in that respect. In the present case, 
however, damage has been caused, not by a 
mere omission to perform an obligatory duty, 
but by such negligence in the actual performance 
of a permissive duty as, in the opinion of the 
Court, amounts to misfeasance. The body- 
guilty of such negligence is, according to the 
recent case of Nefrman v. East London Munici- 
pality^* liable for damages which might reason- 
ably have been foreseen as likely to be caused 
by such negligence. 

Mr. Justice Upington said : I am also of that 
opinion. During the argument-s I was in favour 
of some of the propositions advanced by Mr. 
Solomon, but after carefully weighing the rules 
relating to what is known as causation I have 
come to the conclusion that the Town Council 
of Port Elizabeth are liable. 

Mr, Benjamin asked for qualifying costs in 
respect to three of the witnesses for the 
plaintiff. 

The Chief Justice said : There is no doubt 
that the Court has on some occasions allowed 
qualifying costs, but they have only been allowed 
in very special cases, where the Court has 
derived considerable assistance from the pro- 
duction of plans, &c., and of course where it has 
been necessary to qualify for the purpose of 
making those plans. In the present case we do 
not see such special circumst-ances as would 
justify the Court in granting this application. 
Of course, the plaintiff will be entitled to his 
expenses as a witness. 

[Plaintiff's Attorneys, Messrs. Van Zyl & 
Buissinn^; Defendants' Attorneys, Messrs. 
Fairbridge, Arderne & Lawton.l 



CAVANAOH V. CAVANAGH, 



{ 



1896. 
May 20th. 

This was an action for divorce instituted by 
the plaintiff on the grounds of his wife's 
adultery. 

The declaration alleged that the parties were 
married at Cape Town on 13th March, 1889, and 
that the adultery wascomraitt-edin 1893. 

That there was one surviving child of the 
marriage — a boy, aged foui^-whose custody the 
plaintiff claimed. 

Mr. Graham appeared for the plaintiff. The 
defendant, who was in default, had been -pet- 
sonally ser\'-ed with the summons, declaration, 
and notice of trial. 

Mr. N. Lacy, of the Colonial Office, produced 
the original marriage certificate. 

Daniel Frederick Cavanagh deposed that he 
was the plaintiff, and that he was married on 

■ -^ ■■ — ■III ■■■■■■Ml ^^^— ^ M » ■ »»■ » ^m^^^m m I ^ 

• 6 Shell, 41, 



183 



Msrch 13, 1889. He and his wife resided at 
Wynberg for some time. Shortly after marriage 
a child was born, and a year after marriage the 
second child was bom. They removed to Kenil- 
worth after eight months of married life. They 
had lived unhappily together, his wife running 
him into debt. After quarrels, he sent her back 
to her father. It was now four years since he 
last cohabited with his wife. About eight 
months ago he heard various rumours about his 
wife, and five months ago he had an interview 
with her in the presence of her father and 
mother, fl e taxed his wi f e with having recen t ly 
given birth to a child. She denied it, as did the 
parents. A few days later he again saw her and re- 
peated the allegation, whenshe admitted the fact 
but declined to give the name of the father. 
After the admission he refused to support her. 
The first-born child was dead, the second child 
of the marriage was a boy of four years old. 

Mary Andrews, a coloured woman, said she 
acted as midwife on the occasion of the 
defendant giving birth to a child about a year 
ago. The plaintiif had pointed out to her his 
wife— it was the same woman. 

The Chief Justice said : I see there has been 
personal service on the defendant, and the 
admission to the plaintiff is testified to by him 
and supported by other evidence. The defen- 
dant gave birth to a child last year, although 
there has been no cohabitation between herself 
and her husband for the past four years. A 
decree of divorce will be granted, the plaintiff 
to have the custody of the child of the 
marriage. 

MCUWD V. BKRDLB A>T) CO. { May ^th. 

This was an application for leave to sign 
jttdgmeat agninst the respondents, plaintiffs in 
the action, for not proceeding with their claim. 

The facts are these : 

On 22nd October last summons was Issued 
•gaiit^t the applicant at the instance of the 
chairman of the company in his capacity, in 
which the sums of £14 Ss., £172 lOs., £34, and 
*200 were claimed. 

On 26th October the applicant entered ap- 
pearaaoe, and on the same day served notice of 
the fact on the company's attorney. 

The applicant alleged that he had frequently 
Mked the plaintiffs' attorney to proceed with 
the action, and to serve the declaration, but 
without avail. That he had also repeatedly 
uked for a statement of accounts showing how 
the plaintiffs arrived at the figures £14 8s., as 
Alleged to be due to him. but without avail. 

That the action instituted was utterly ground- 
las, and was the result of a suit by himself 
B Z 



against the plaintiff company in the Court of 
the Resident Magistrate for [the Cape Division, 
wherein he claimed certain moneys due for 
rent, and in which the chairman of the company 
pleaded that the defendant company had a 
counter-claim which exceeded the jurisdiction 
of the Magistrate, and claimed the dismissal of 
the action. 

That the applicant agreed to the dismissal of 
his claim if the defendants promised to proceed 
immediately with their alleged action in the 
Supreme Court, and that upon their promise to 
do so the action in the lower Court was 
dismissed. 

That the time requisite for the prosecution of 
the plaintiffs' action had now lapsed. 

That since the issue of summons Beedle & Co. 
had been placed under the Winding-up Act, and 
was now in liquidation with Isidor Hanau, 
Frederick Heinrich Fismer, and Adolf Wilhelm 
Heinrich Koch as official liquidators. 

Mr. Graham, for the company, contended that 
the applicant had no locus gtandi, as he had not 
obtained the required leave of the Court, as 
provided by Act 25 of 1892, section 141. 

The Chief Justice : We grant the leave now. 

Mr. Close, for the applicant, urged that the 
141st section referred to actions instituted 
against the company after the winding-up 
order. 

The Court made no order. 

The Chief Justice said : The Court will make 
no order on this application except that the 
plaintiffs must file their declaration within 
forty-eight hours and go to trial this term. The 
question of costs can stand over. 



JONES V. TOWN COUNCIL OP CAPE TOWN. 

Mr. Graham moved under the 40th Rule of 
Court for confirmation of the security in the 
matter of the appeal to the Privy Council. The 
sureties were Mr. George Smart, Mayor of Cape 
Town, and Mr. CharlesJByworth, Town Clerk. 

The order of confirmation was granted. 



SUPREME COURT. 



[Before Sir J. H. DE ViLLlKBg, K.C.M.O. CChief 
Justice), and Mr. Ju.tice Upinqton, 
K.C.M.G.] 



BROAD V. BOBEBTB'B B8TATK. i t^ ^^^o, ^ 

( May 21st. 
Mr. Shell, who appeared for the plaintiff, 
1 mentioned this case, which had been set down 



I 



184 



for trial to-morrow, and said that a settlement 
had been arrived at, the terms of which were 
embodied in the following consent-paper : 

1. Judgment is entered for plaintiff for the 
sum of £260 in full settlement of all claims and 
oounter-claims between the parties to the suit. 

2. Plaintiff to stop cutting wood on Orass- 
ridge No. 2 forthwith, but to be entitled to 
remove of the wood already cut not more than 
sixty double loads, or 120 single loads. 

3. Plaintiff to have until 31st August, 1825, 
within which to remove his stock and to take 
away all the improvements made by him. 

4. Mr. Kirkwood to take a tally with the 
plaintiff or his servants, on behalf of the 
defendants, of the wood. 

6. Bach party to pay his or their own costs. 

The above represents the terms upon which 
this suit has been settled, and to judgment 
being entered accordingly the partie hereto give 
their consent. 

The Chief Justice : Let judgment be entered 
accordingly. 

[Plaintiff's Attorneys, Messrs Tredgold, 
Mclntyre k Bisset; Defendants' Attorneys 
Messrs. Van Zyl & Buissinn^.] 



BSAUDlfi y. EXBCUTOB OF YEBDOBS 



•{ 



1896. 
May 2l6t 
22nd. 



»f 



Frio ci pal and agent. 

The plaintiff gave to K. certain mims of 
money amounting in all to £1,000 for the 
purpose of advancing the same to the defeu" 
dant upon security of a bond to be passed 
by the defendcuitj but K. only paid £291 to 
the defendant and appropriated the balance 
to his own use. 

Thereafter the defendant employed K. as his 
agent to borrow the sum of £1,000 on 
similar security and gave him a power of 
attorney to raise the money on mortgage but 
the name of the agent was left blanh. 

Held, that, tn the absence of proof that the 
defendant had, before giving the power, 
authorised K. to receive any moneys on his 
behalf the plaintiff was not entitled to 
recover more than the £291 paid on his 
behalf to the defendant. 



The declaration alleged that in October, 1893, 
the plaintiff entered into an agreement with 
the defendant (Verdoes) through his agent, one 
Keyter, by which the former agreed to advance 
the latter the sum of £1,000, to secure the 



repayment of which the defendant was to pasa 
a first mortgage bond upon the farm Kllprug 
and the two adjoining pieces of ground* 

That the plaintiff subsequently paid the £1,000 
to Keyter on behalf of the defendant, but that 
the latter refufied to pass the bond. 

The plaintiff claimed : 

(a) An order compelling the defendant to 
pass in favour of the plaintiff a first mortgage 
bond upon the farm Kliprug and the two 
pieces of ground adjoining, for the sum of £1,000, 
with 6 per cent, interest from 1st February, 
1894 ; or in default thereol 

(b) An order directing the defendant to pay 
to the plaintiff the sum of £1,000, with interest 
at 6 per cent, from Ist February, 1894. 

ic) Alternative relief with costs. 

The defendant in his plea denied that he 
entered into any agreement with the plaintiff ae 
alleged in the declaration, and that Keyter was 
his duly authorised agent to enter into the said 
ag^ement. He alleged that he was not aware 
that the plaintiff paid the £1,000 to Keyter, and 
he denied that Keyter was authorised by him to 
receive the said money on his account. 

Mr. Rosd-Innes, Q.C., appeared for the plain- 
tiff. 

Mr. Juta, Q.C., and Mr. Molteno for the 

defendant. 

The facts appear sufficiently from his lord- 
ship's judgment. 

The Chief Justice said: In this case there 
has been much conflict as to the real position 
which Keyter occupied towards the parties 
to the suit. Of course it is the plaintiff's ca«»e 
that Keyter was the agent of the deceased, 
Verdoes, to receive- on his behalf the moneys 
given to him by the plaintiff amounting in all 
to £1,000. On the defendant's behalf it is 
contended that Keyter was the agent of neither, 
but was to borrow the money from the plaintiff 
and Ibud it to the defendant. Neither view 
appears to me to be perfectly correct. I am 
not satisfied that Keyter had any power of 
attorney from Verdoes at the time when he 
received the money and appropriated all except 
£291 to his own use. The probability rather 
appears to be that Braude, being desirous not 
to have his name known in the transaction 
employed Keyter as his own agent to lend the 
money to Verdoes upon security of a mortgage 
bond. Keyter paid only £291 to Verdoes, who 
must have known that it was advanced by the 
plaintiff. Thereafter Verdoes gave a blank 
power of attorney to Kejier to raise the money 
but the giving of such a powei^-^ven if the 
name of the agent had been filled in — cannot 
have a retrospective effect so as to amount 
to a ratification of payments prsvionaly made 



185 



toleyter, of wbich Verdoee had no knowledge 
tk an or from inrhicH "he derived no benefit. 
The plaintiff is not therefore entitled to reooyer 
tke full Bam of i&l,000 from the executor of 
V«ldoe^ bat be is, in my opinion, clearly 
enkiUed to reooTer tlie Biim of A291 paid to 
Vertees. For this amount judgment must 

beghren for the plaintiff with costs. 
[PlaintifrB A^ttomeya, Messn. Van Zyl ic 

^mvx^ ; DefendenVfi Attorney, W. E. Moore.] 



SUPrHEME COURT. 



[Before Sir J. H.DB Villisbs leC.M.a. (Chief 
Justice), and Mr. Justice Upinqton, 
K.C.M.G.3 



QUKKK V. ALLIES. (M^r^^nd. 

Ilabitaal Dmnkard — Liquor Act (1891), 

section, 28 —Police Offencen Act (1882), 
section 9. 

Where a prixoner^ who was charged before a 
MagiMtrate and found guilty of contravene 
ing section 9 of the Police Offences Act of 
1882, had been during the twelve months 
preceding the date of his conviction three 
times coneicted of drunhenness and once, 
m'thin the same period, of contravening 
section 10 of the Police Offences Act of 
1882, and ttas sentenced by the Magistrate 
to twelve months^ imprisonment with hard 
labour under Act 25 »/ 1891, section 28, 

The Court, on review, quashed the convic- 
tion. 



Mr. Justice Upington said : This case has 
eome before me as judge of the week on review 
from the Kesident Magistrate of Oudtshoom. 
The aecused was convicted before the Resident 
Magistrate of Oudtshoom of contravening the 
M section of Act 27 of 1882 by being drunk in 
the public streets of Oudtshoom. The Magis- 
trate sentenced Allies to twelve months* 
impriaonment with hard labour, on the 
groand that he had been previously 
eoavieted foar times within the year. 
The Magistrate, in forwarding the recorda 
drew my attention to the fact that one 
•f the convictions within the year had been not 
for contravening section 9 of the Act, bat 
Bsetioq 10, which refers to the use of threatening 



or abusive language in any public place, and con- 
sequently a difficulty arose as to whether this 
was a case that could be dealt with under the 
Act providing for this extreme jurisdiction to 
the extent of twelve months' imprisonment 
with hard labour. The Magistrate, in his letter 
to me (but, of course, that I can take no notice 
of), says that the man at the time he used the 
threatening language was drunk ; but that was 
not the charge, and consequently it now appears 
that there havenotbeen four convictions within 
the year, and the limit of jurisdiction comes to 
that within the ninth section of the Act of 1882, 
which gives the Magistrate power to inflict a 
sentence of a fine of £5. or in default of pay- 
ment to three months' imprisonment with hard 
labour. On the whole, the Court is of opinion 
that the conviction, - under the circumstances 
should be quashed. 



HBYNISMANS' TBU8TBB Y. f 1896. 

LOUBSSB. (May 22nd 

Insolvency — Alleged sale — Pledge— Ve&tiug. 

Where certain movables, which were alleged 
to have been sold, but were really only 
pledged, by the insoloenti in wh yse posses- 
sion they . remained, and which the Court 
found had never vested in the pledgee, were 
taken possession of by the pledgee after 
the insolvents had filed their schedules. 

Held, that the trustee was entitled to the value 
of the articles. 



This was an action instituted by Mr. F. F. 
Werdmuller in his capacity as trustee in the 
insolvent estate of D. J. D. Sc C. J. P. Heyne- 
man against the defendant, a shopkeeper, 
residing at Yredenberg, in the district of 
Malmesbury. 

The declaration alleged that the insolvents 
carried on a farming business in partnership at 
Witt«klip, in the district of Malmesbury, and 
that their estate was surrendered on February 
19, 1896. 

That on the 9th February, 1896, and after the 
insolvents had notified their intention of sur- 
rendering the partnership estate, the defendant 
came upon the insolvents' farm and wrongfully 
and unlawfully and against the will of the 
insolvents took possession of certain animals, 
vehicles, and certain other artidea, belonging to 
and the legal property of the partnership 
estate. 

That the value of the articles taken possession 
of was £200, 



186 



That at the date when the defendant wrong- 
fully seized the gaid articles, he was a creditor 
of the partnership estate in the sum of £200 or 
thereaboutB. 

That the defendant since the date of the 
seizure had retained possession of the articles, 
and refused to give them up, and that the plain- 
tiff had sustained damages in the sum of £200. 

The plaintiff claimed : 

(a) An order compelling the defendant to 
deliver to the plaintiff the said articles, or to 
pay their value, £200. 

(b) £100 damages, and costs. 

The defendant in his plea admitted the 
seizure. He denied that he was aware tha'. the 
insolvents had notified their intention to sur- 
render, and he specially pleaded that the articles 
seized were his legal property, he having he ught 
them from the insolvents in the month of 
March, 1893, and that he was legally entitled to 
remove them, being his said property. 

He admitted that he retained possession of 
the articles and refused to give them up. 

The plaintiff in his replication specially 
denied that the articles had been purchased by 
the defendant from the insolvents in March, 
1893. 

He admitted that a transaction was entered 
into between the defendants and the insolvents 
in regard to the articles, and that on the 27th 
March, 1893, the insolvents signed a written 
document purporting to be an acknowledgment 
that a sale had taken place of the said articles 
to the defendant for the sum of £254, and that 
the said sum had been paid in cash by the de- 
fendant. 

He said that no hona-fide sale of the said 
articles did take place ; that no such cash was 
paid as aforesaid, and that the true intent of 
the parties in entering into the said transaction, 
and of the insolvents in signing the said docu- 
ment, was to secure to the defendant a 
preference over the said articles for a debt then 
due to him by the insolvents without any 
delivery of the said articles to the defendants. 

Issue was joined on the rejoinder, which was 
general. 

Mr. Rose-Innes. Q.C. (with him Mr. Molteno), 
for the plaintiff. 

Mr. Juta, Q.C. Cwith him Mr. Buchanan), for 
the defendant. 

The facts appear from his lordship's judgment. 

The Chief Justice said : The evidence shows 
that on February 4 the insolvents prepared their 
schedules, and that on February 8 a notice 
appeared in the " Gazette ** to the effect that 
the insolvents intended to apply for the seques- 
tration of their estate as insolvent. On 
February 9 defendant appeared at the farm of 



the insolvents, and from there carried away the 
goods which are now in dispute. I 
am perfectly satisfied from the evidence 
that this was done without the con- 
sent of the insolvents— one of them actually 
objected, and the other one said he would rather 
say nothing about it. In my opinion on 
the 9th of February there was not such a 
delivery as would vest the property in these 
articles in the defendant if they had not already 
vested in the defendant before February 9. 
Under circumstances like these before us, it 
would be impossible for any Court to hold that 
there had been any vesting of the property, and I 
certainly d6 not think that the circumstances 
under which the goods were taken can be con- 
strued as a delivery to the defendant. The 
question therefore resolves itself into one of 
fact: had there been a delivery before that day ? 
It is immaterial from this point of view 
to consider whether the transaction was a 
sale or a pledge. Assuming that it was a 
bona- fide sale, there is no evidence that at 
any particular time these goods were taken 
possession of by the defendant. The argu- 
ment is that all the stock were running in the 
immediate neighbourhood, and that there was no 
necessity for actual delivery to vest the 
property in the defendant. If that be the 
case we had better put an end to the whole 
law, which requires that there shall be due 
deliver>' before the property vests in the person 
to whom it purports to belong. From the 
whole evidence I am satisfied that the trans- 
action was never really intended to be an 
out-and-out sale. It was simply one of those 
transactions so very frequent in this country, 
where the creditor makes arrangements with 
the delitor that certain goods shall be con- 
sidered as sold to him. The} are never taken 
over, but remain in the possession of the debtor, 
and only when trouble comes does the creditor 
go to the debtor and claim the goods. Mr. 
Juta has urged very strongly that the veiy 
fact that the promissory note for £100 wa^ 
delivered up by Loubser to the insolvents ia 
proof conclusive that it was a sale, but the 
delivery of the note may have taken place upon 
the assumption that the deed of sale was a suffi- 
cient security. At all events, the presumption 
is not so strong from that mere circumstance as 
to rebut the presumption which other oiroum- 
stsnces force in this cane. When the document 
had been entered into, Loubser gets Miss Jordaan 
to write a letter inf or ning the insolvents that 
on a certain day the promissory note, which had 
then been reduced to £140, had fallen due, and 
requesting them to pay that sum over. Of 
course defendant is made aware how very 



187 



<iuBaging Uiat leister 'was, and Miss Jordaan is 
liMl^t to prove tliat it w^as ber miRtake, and 
^•tiheb&dreceive<l different instrnctioDB. She 
laidihedid not kno^r tlie i&lO was paid off, there- 
im one would expect £150 would have been the 
HDoant she w^onld. naturally ha?e named, and 
not £140— the very amount which was doe upon 
the ftfomieBory note. Therefore I am satisfied 
dit ii mistaken in saying^ that she mistook her 
imtraetions. Sncti a mistake is perfectly un- 
iBtelligible. There are the other oircumstancea 
thtt tram time to time payments were made 
in respect to this note, and these payments were 
credited to the insolvents. Loubser tried to 
explain these payuients by saying there were 
other transactions between them, " there were 
othor biUs between us at the time, and 
these payments must bare been made in 
respect to these other bills." The bank 
seocHmtant, however, says that althoufl^h there 
were promissory notes between the parties 
before 1893, there was no other note in 1893, and 
therefore Ixmbser is mistaken in saying these 
payments were made in respect of other promis- 
fiory notes. They must have been in respect to 
this promissory note of £150. It is inconsistent 
with the sale if that be so. If there had been an 
out-and-out sale, Lonbser could not have called 
npon the insolvents to pay any portion of 
this promissory note. Then there is another 
document which has so far been unexplained. 
Sdioaken gave a receipt in which was the 
Item £3 8s., bank interest, but nobody showed 
what that bank interest was for. In the 
abeence of any information on this point the 
only presumption is that the £3 8s. was the interest 
in re s pect to the only known promissory note 
between the parties at that time. These cir- 
cxunstances all prove that the transaction was 
really not intended as a sale, but was intended 
to be a pledge. Defendant may have really 
intended it as an out-and-out sale, but in 
the absence of any delivery of the property 
— smy due delivery of the property to the 
defendant, there has not been such a vesting 
of the property as justified the defendant 
In coming, after the schedules had been 
filed, and taking away the goods. Under 
these eircamstances I am of opinion that 
the tmatee is entitled to recover the full value 
of what was taken away, and considering the 
valuation attached to the goods in the 
sehcdnle, I am of opinion that £160 represents 
furty the amount of the value of the goods and 
the damages which have been sustained by the 
trustee In consequence of the removal. Judg- 
ment is. therefore, given for £150 and costs. 

Mr. /ostice Uplng^n : I am also of that 
sfriBion. Transaetlons of the nature of that 



between Loubser and the insolvents are not, in 
my opinion, to be encouraged, but even if I 
were not hostile to them the evidence in this 
case has been so overwhelming on the part of 
the plaintiff that I should have been compelled 
to have found for him. 

fPlaintiff's Attorney, C. C. de Villiers; 
Defendant's Attorney, W. E. Moore.] 



SUPREME COURT. 



[Before Sir J. H. DB Villibbs, E.C.M.Q. 
(Chief Justice), and Mr. Justice Upington, 
K.C.M.G.] 



TWBNTYMAN AND CO. 
ZABON. 



). V. } 1895. 

} May 26th. 

Mr. Tredgold applied for the final adjudication 
of the defendant's estate. 
Application granted. 



PBTBBSBN V. FRAMB AKD ANOTHBB. 

Mr. Tredgokl applied for judgment for £76 ; 
£21 lis. 8d., and £17 5s. 
Judgment in terms of consent. 



ROLFE, NEBBL8 AND 00. Y. 0UBTI8. 

Mr. Close moved for judgment under rule No. 
329, for £111, less £6 paid on account, for goods 
sold and delivered. 

Granted. 



GOURLAY AND CO. Y. H. B. H. SIMONS. 

Mr. Close moved, under rule No. 329, for judg- 
ment for £186, with interest and costs of suit. 
Granted. 



IN THE BSTATB OP THB LATB JOHN O. SCOTT. 

Mr. Close applied for authority to the 
father of the minors Getzkom to dis- 
pose, by public auction, of their share of 
certain landed property, being lot No. 3 of the 
Retreat Estate, situate in the Cape Division, 
bequeathed to them by the said Scott, and to 
pay the net proceeds into the Guardians' Fund, 
the land being at present unproductive and the 
co-proprietors being dee irons of selling the same. 

Order granted. 



THE PETITION OF CATHERINE B. HAWKINS. 

Mr. Benjamin, for petitioner, applied for 
leave to sue in forma pa/uperU in an action 



188 



agftinst her hiubAnd for divorce, or othervriBe 
for judicial aeparatioa by reason of hiH cruelty 
towards her. 
Referred to counsel. 



IK THE MATTXR OF THE MINOBS VAN DEN 

HSEVKB. 

Mr, Juta, Q.Om applied for authority to the 
father of the said minors to raise a sum of 
money on mortgage of the farm Haartebeest- 
fontein, in the district of Albert, for the purpose 
of satisfying the interest due on a bond over the 
said property. 

Order granted in terms of the Master's report. 



VICKBBS V. VICKBB8. 

This was an action for divorce instituted by 
the plaintiff against his wife on the grounds of 
her adultery with one Keyter. 

Mr. Oraham for plaintiff. 

The defendant was in default. 

Keyter was called as a witness for the plain- 
tiff and admitted having had carnal connection 
with the defendant. 

There was also evidei^ce that the defendant 
had admitted her guilt with Keyter, 

The Court granted a decree of divorce. The 
plaintiff to have the custody of the child of the 
marriage. The defendant was declared to have 
forfeited all benefits conferred upon her under 
the ante-nuptial contract. 



Re DU TOIT'S ESTATE. 



{ 



1895. 
May 26th. 

Insolvency Rlectioti of trustee — (/Oiifirma- 

tioii. 
At a special meeting of creditors held before 

a Magistrate for the election of a trustee 

two creditors, each of whose claim was 

below £30, voted for O. 
One creditor^ whose claim was below £30, 

voted for P. 
The Magistrate declared O. elected sole 

trustee^ and the Court confirmed the 

appointment. 



At a special meeting of creditors held before 
the Resident Magistrate of Aliwal North on the 
15th May, 1895, two creditors, who proved for 
£'28 and £7 respectively, voted for the appoint- 
ment of Dudley James Orsmond as sole trustee. 

One creditor, who proved for £26 17s. 2d., 
voted for the appointment of P. M. Fitzgerald. 

The Magistrate declared Orsmond elected 
sole tniBtee. 



The Master in moving for confirmation of the 
appointment directed the attention of the 
Court to the 38th and 4:Hh sections of the 
Ordinance. 

The Court confirmed the appointment. 



SUPREME COURT. 



[Before Sir J. H. DE ViLLlBBS, K.C.M.Q. 
(Chief Justice), and Mr. Justice Upinqton, 
K.C.M.G.] 



MILLS'B BXBCUTOBA V. BT^LLTS AND I 1895. 

OTHERS. 1 May 27th. 

Mr. Innes, Q.C., appeared for the plaintiff, 
and moved for judgment in terms of the 
consent paper filed. 

Judgment was granted as prayed. 



WOLFE V. WOLFE. 



I 1896. 
J May 27th. 

This was an action for restitution of oonjugml 
rights, failing which for divorce, inatituted by 
Mr. Arthur K. Wolfe against hia wife on the 
grounds of her malicious desertion. 

The declaration alleged that the partiee were 
married by ante-nuptial contract on the 89th 
September, 1891, that one child, a boy, was born 
of the marriage, and that the desertion took 
place in March of the present year. 

The prayer was for : 

1. A decree of restitution of conjugal righta, 
falling which for divorce. 

2. Custody of the child of the marriage. 

3. Forfeiture of all benefits under the ante- 
nuptial contract. 

Mr. Molteno appeared for the plaintiff. 

The defendant was in default. 

Mr. Norman Lacy produced the duplicat-e 
original of the marriage register, sliowing that 
the marriage took place on September 29, 1891. 

Arthur Kilwarden Wolfe said defendant wm^ 
his wife. Her maiden name was Cole. At the 
time of the marriage she was a minor. They 
lived at Wynberg after the marriage. In 
December, 1892, he went to Vry burg for a month, 
and when he returned there seemed to be some 
estrangement between them. On March 1 laat 
she left his house and went to her brother-in- 
law's, but returned on the 22nd of the same 
month. On March 27 she left again, leaving^ a 
letter behind saying she had no excuse to offer 
for leaving nor any explanation to give. She 
could not live with plaintiff any longer. It was no 



189 



ST to retum or trying to force her 
iw the would not^ 61ie wrote to him from 
PvbtsTillein reply to a request that she should 
fttan. njin^ she liad tlioug:ht and re-thought 
0W the matter tyutr did not want to sec Cape 
TovB tf^in.. He -was moet anxious for her 
to oome baek^ and he wrote, asking 
Iter to f^Ne up llie man she appeared 
to bre BO mueb. ; to live a pure and chaste 
Hfe« tnd he would take her away somewhere 
where they coiald befp^ ^^^^ afresh. He was 
emplctyed in the Civil Service, and it had been 
his tAtention to get a transfer to some place as 
fir from Cape Town as poesible. He next heard 
of his wife from De Aar, reoeiving a number of 
letten and telegrams from that place, including 
tome fiom a clergyman there who was endea- 
nmring to bring about a reconciliation, but, 
sUhoagh at first the clergyman urged that the 
present proceedings should be stayed, he after- 
wards wrote that his efforts were hopeless. There 
a child of the marriage, a boy two and a half 
old, of which he (plaintiff) was anxious to 
obtain the custody. On one occasion she had 
that if he wanted her he must come and 
her, but he must wire truthfully that he 
loTcd her. He, however, replied that in 
omacqroence of her actions all love had vanished 
he would simply attempt to do his dut}'. 
defendant in her letters exhibited much 
love for tiie child, and on its account was some- 
determined to oome back, but she always 
her mind. She admitted she had 
deeply wronged the plaintiff, but she did not 
him, and believed she could be a better 
in with the man she loved, provided she 
her child, than ever she should be with 
pfauntifC She felt it impossible to return and 
Shre the other man up. 

la answer to the Chief Justice, plaintiff said 
he wrae prepared to take his wife back if she 
not been unfaithful. He wL^hed her to 
hack* 
A decree for the restitution of conjugal right, 
wraa granted, defendant to be ordered to return 
to tbe i^intiif on or before June 30, failing 
wbieh a rule m#l was granted, returnable on the 
ISth July, on which date defendant must show 
esoac why a decree of divorce should not be 



On the return day the rule was made absolute 
the custody of the child given to the 
piaintiiE. 

[FlMintUTs Attorneys, Me'sra Fairbridge 
Aidumt A Lawton. J 



SLABBEB V. NKBZEB'S EZBCUT0B8. | Mav^^th 

Donation — RegiFtratiou — Minor chilH — Ac- 
ce])tapce by father — Revocation — Majority 
— Ratification. 

Donations proper^ as distinguished from 
remuneratory donations^ require registration 
in the Deeds Office if they exceed the sum 
of £500 in value, and they are invalid and 
revocable to the extent of such excess, unless 
so registered, 

A donation by a father to his minor child is 
completed by sfich registration whatever the 
amount may be. 

An unregistered donation by a father to his 
minor child is not deemed to be complete 
without clear proof of acceptance by the 
child or by tne father on behalf of the child. 

Acceptance by the child alone is sufficient if he 
has reached the age of puberty , but if he is 
under that age, the gift must be accepted by 
the Court, the Master, or the father on his 
behalf 

Whether the minor be under or above the age 
of puberty the complete acceptance by the 
father icould be sufficient, but such ad ep- 
tance would be incomplete, as such, without 
some act done by the father to prove his 
intention to divest himself of the property, 
such as delivery to a third person, transfer 
in the Deeds Office, or, in the case of a 
cession of action, notice to the debtor of such 
cession to the child. 

The plaintiff's father deposited the sum of 
£334 in her name in the Savings Bank at a 
time when she was still under twelve years 
af age and the Bank credited her with the 
amount. 

Held that) as the Bank was authorised by law 
to receive deposits from jmrents on behalf 
of their minor children, the deposit by the 
plaintiff's father couj.led with the receipt of 
the money by the Bank to her credit con- 
stituted a sufficient acceptance of the dona" 
tion by the plaintiffs father on her behalf 

Before the plaintiff attained majority her 
father with her concurrence withdrew the 
monry and dealt with it as his own^ and 
after attaining majority the plaintiff and 
her husband for several years lived r^nt 



190 



free in a home belonging to plaintifTs 
father ^ and received other hen* fits from him. 

She became insolvent but did not claim the 
money, although if she had received the 
amount her estate tcould have been perfectly 
solvent. 

No action teas brought against the father 
during his lifetime ^ but after his death the 
present action was brought against his 
executor. 

Held, that although the plaintiff's assent to the 
withdrawal did not prejudice her rights, 
her subsequent conduct amounted to a 
ratification of her father's revocation of his 
gift 

In this action the trustee in the Insolvent 
estate of Thomas C. Slabber sued the executors 
testamentary of the estate of the late Jno. 
Christiaan Neezer for the sums of £234 
28. 4d. and £100. 

The declaration alleged that T. C. Slabber is 
married in community of property to Isabella 
Francina Hennett« Neeser. 

That on 22nd December, 1867, J. C. Neezer, 
since deceased, gave and donated to Thomas C. 
Slabber's wife £100, and on 24th July, 1862, he 
gave and donated to her the sum of £78 10s. 

That the moneys were placed in the Cape of 
Good Hope Savings Bank in her name by J. G. 
Neezer (her father), and interest accumulated 
upon the said amounts until the end of 1872, 
when the sums so deposited with accumulated 
interest amounted to £334 4s. 7d. 

That on 14th January, 1873, J. C. Neezer 
wrongfully and unlawful Iv appropriated to his 
own use these sums of money without the know- 
ledge or consent of Isabella F. H. Neezer. 

The plaintiff prayed that the defendants might 
be ordered : 

(a) To pay him the sum of £234 2s. 4d. with 
interest from the 14th January, 1873, and the 
sum of £100 with interest from the 18th 
January, 1876. 

(h) Alternative relief and costs. 

The defendants in their plea admitted that at 
the end of 1872 a sum of money, amounting with 
accumulated interest to £334 4b. 7d , was in the 
Savings Bank to the credit of Mrs. Slabber, who, 
they alleged, withdrew the same when she was a 
minor and unmarried, and that she signed 
receipts for the same. 

Mr. Tredgold and Mr. Buchanan appeared for 
the plaintiff. 

Mr. Rose-Innes, Q.C., and Mr. Close for the 
defendants. 



Isabella Francina Henrietta Slabber, wife of 
the iusol vent, said she was a daughter of the late 
John Christian Neezer, who died March 16, 1894. 
She was born in 1867, and married on August 23, 
1881. Her mother died in 1888, and her brother 
Andrew died the year previous. When quite a 
girl she went to the Savings Bank to sign her 
name to get some money out of the bank. Her 
father said the bank would give her no more 
interest, and he was going to put the money 
elsewhere. Her father had told her beiore they 
went to draw out the deposit that there was 
money in the bank for each of his children. 
She only remembered going to the bank onoe. 
She might have gone twice, once when sixteen 
years old and once when nineteen, but she did 
not remember any of them but the last occasion* 
Three years ago she asked her father to pay a 
doctor's bill, buc he twice refused. The second 
time she asked him to give her some of her own 
money, and he said he had none. Before her 
husband became insolvent she asked her father 
to stand security for him for £30, and he refused. 
He had never assisted her or her husband with 
money. After she came of age she never gave 
her father authority to use her money. She 
had never had the use of any of the money placed 
in the bank in her name. 

Cross-examined by Mr. Innes, Q.G. : She was 
twenty-four when she married. She did not 
tell her husband that her father had money o£ 
hers when she married. She had not required 
the money, and had not asked for it. She had 
made no claim for the money till lately, when 
she found she was entitled to it. There had 
been a little friction between her and members 
of the family, because her fourth part of the 
estate under the will was tied up to be 
invested for her seven children. There was 
a further fourth invested for her children and 
her brother's children. The estate was worth 
£6,000 or £6,000. She had lived in one of her 
father's houses eight years rent free. He gave 
no other assistance, except that he t-ook one of 
her daughters and supported her. 

Re-examined : She had always lived comfort- 
ably. 

By the Chief Justice : Her father had told her 
he had deposited the money in the bank for the 
benefit of his children some time before the 
withdrawal. 

Mr. Sebastiaan Valentine Hofmeyr said he 
was secretary of the Cape of Good Hope Saringa 
Bank since April, 1879. On December 22, 1867, 
£100 was deposited by J. C. Neezer, as guardian 
of the last witness. In 1862, £78 lOs. was de- 
posited to the same account. In 1873, £234 
2b. 4d. was withdrawn from the account, and in 
1876 £100 was withdrawn. Altogether, on dif- 



I 



191 



imiMHNmtB of w^liidli J. C. Neeierwas guar- 
diiD,il;00O wa»^«ritlidT«wiiin 1873, and about 
1300 in 1876. 

ByOkeCblef Jostioe : In 1891, what was left 
istiMbaok on tha^ account was eonsidMred 
beloDging to tbo last witneas. 

George WilUaxn Stey tier, trustee in the insol- 

TBDt Mtete of TliomaB O. Slabber, said there was 

adBackncy of £188 in the estate. Witness was 

•KittaTy of the Colonial Orphan Chamber. On 

Vsxch 1, 1873, the late J. C. Keeaer deposited 

fi,0(X); on March 2, 1874, £2C0 ; in January, 

1870, £300. making £1,600 in aU. These 

amounta were all deposits on Neeaer's own 

aooonnt^ It was now all paid out. The last 

payment— beins £400 — ^was made in January, 

1882. InJanna^, 1877, £800 was deposited by 

Neeier on aoooont o< his children, and repaid in 

1883w On the same date as tiie repayment, 

Keaer paid £158 for some property, and the 

halance of £142 he re-deposited on the same 



Mr. William Edward Moore, the defendant, 
ezecotor of the late J. C. Neeser, said he had 
dcMM bnsineea with Neeser for the last twenty 
jeeia He had had no knowledge of the amounts 
in qneetion deposited in the Cape of Good Hop« 
Bank beyond what had now oome out in court, 
and he did not feel justified in admitting the 
daim oi Mrs. Slabber on those facts. 

CrooB-examined by Mr. Tredgold : Neeser left 
books of account* After Slabber's insol- 
r, Neeser bought the furniture and lent itto 
iafldlTent and his wife at the nominal sima of Is. 
m month. On Neeaer's death the furniture was 
appraised and taken over at the yaluation. 

By the Chief Justice : Witness was conrinced 
tliat for some years before his death Neezer had 
lijelped to support Mrs. Slabber. 

Wm. Neeser, brother of Mrs. Slabber, said the 
Slabbers liyed in a house of his father's for 
rears. That house now fetched £2 lOs. a 
toath rent. He was sure his father had in 

ways helped them. 
Crofla-examined by Mr. Tredgold : He was not 
carrying on any business. He had not re- 
tired. He kept a trap and horse, not for 
plea sure, bat for working purposes— to take the 
ehfldren to school, He had not received con- 
nderable help from his father during the latter's 
lifetime. He took over the canteen business in 
1889 and kept it till 1893. When he took over 
the boainess he was to pay one-third of the 
prafita to his father. He had done so ; his 
father had not said in his presence that he had 
atitdonesa 

Mr. Tredgold in support of the plaintiff's case 
relied on Van Reenen'i Trustees v. Ver^eld (2 
Shail, 101: 9 Juta, 161); Thorpe's Executors v. 

c2 



Thorpe's Tutor (4 Juta, 488); UUiott's Tnurte&s 
V. ElUatt (3 Mens., 86); Ex parte Hopkins (4 
SheU, 59); Voet (39, 6, 7); Van der KeeMel 
(486); Ghoenewegen, Be Leg Ah^ De InstUutis 
(.3, 30, 4-6); Ch-atius (p. 663, note 381) ; Moose- 
hloem (39. 7). 

Mr. Bose-Innes, Q.C., for the defendants 
contended that the action being for restUutio 
in integrum did not lie, as Mrs. Slabber had 
ratified her father's aoti<Hi in withdrawing the 
money. He cited Voet (4, 44) and Van Beoyen 
V. Werner (2 Sheil, 296 ; 9 Juta, 426.) 

Mr. Justice Upington referred to Zewin en 
Trusts, p. 1,068. 

Mr. Tredgold replied. 

Judgment was given for the defendants. 

The Chief Justice said .* For the purpose of 
this case we may assume that there lias been a 
complete donation to the plaintiff's wife by her 
father of the sums which he from time to time 
deposited in her name in the Savings Bank. It 
will be unnecessary therefore to discuss in detail 
the various authorities upon the subject of 
donations to children. In considering this and 
other questions it should be borne in mind that 
our laws have undergone a process of develop- 
ment, and that there are few rules of the early 
Roman Law which can be accepted without 
some qualification. What appears to be a 
difference of opinion between writers of 
authority is often caused by the fact that they 
wrote at different periods during the intervals 
of which the law has undergone considerable 
change. There is no branch of law which has 
been more altered than that which relates to 
donations. The early Roman Law regfarded the 
son or daughter, who was still in famUia, as 
having no legal existence independently of the 
pater farnUias, One consequence was that a 
father could not even make a stipulation with a 
child under his power, much less make a 
donation to him. The Dutch Law modified the 
stringency of the old patria potestas and, at 
an early stage, allowed the father to contract 
with his child but did not at once allow dona- 
tions to be made. Subsequently such donations 
were allowed with certain limitations and the 
intervention of some public authority was 
required to give validity to the donation. It is 
not necessary to trace the law through its 
different stages as stated by GhrotiM^ Greene* 
wegen, Van Leeurven, Voet, and other writers. 
The first- named writer quoting a passage from 
the Code said : *' Parents cannot legally make a 
donation in favour of children who are still 
minors and under their tutelage." Va/n der 
Keesd, who, it should be remembered, wrote one 
hundred and eighty years afterwards, saysi 
"Since the reason for the patria potesias i« 



19^ 



diHerent among us from what it wu among the 
BomanB, there is nothing to impeach the vali- 
dity of a donation made by a father to his son 
whom he has 4n poteitate, and aooepted by 
the son if he has attained puberty, or if 
below puberty by some publio person." The 
intervention of a publio person is no longer 
deemed necessary if the father has himself 
aooepted the gift on behalf of his child. How 
then is such aooeptanoe to be proved 7 A father 
might, without the knowledge of any one else, 
even of the child, make a donation to him and 
then, on behalf of the child, accept the donation, 
but no Court would hold that such a gift is 
complete, for it would remain in his power 
at any time to cancel a gift of which no one 
else knew. On the other hand he would thus 
be enabled, if the gift held good, to defraud 
his creditors by setting up the gift in case of 
his insolvency. It is to prevent frauds on a 
large scale that registration of all donations 
exceeding £600 in value was required, notwith- 
standing the dictum of Gratius (8, 2, 16), to 
the contrary, but it does not follow that dona- 
tions to children for that amount or less would 
be valid unless they had been completed so 
as to be irrevocable. In the case of EUiottt 
Tnutee9Y, EUit/tt (8 Menz., 86) the amount 
of a donation made to a child under eight years 
of age was upheld, but it is evident from the 
reasoning of the Court that the result would 
have been different if the donation had not been 
completed by delivery and acceptance. In 
the subsequent case of Thorpe*8 Eaeouton v. 
Ih4frpe*8 Tutor (4 Juta, 488) the same principle 
was recognised. If in that case Thorpe had 
kept the policy in his own hands, and given 
no notice to the Insurance Company of the 
cession to his childron the Court would cer- 
tainly not have upheld the donation although 
it was of less value than £600. I have not 
referred to remuneravory donations which, being 
founded upon the principle of " consideration," 
stand upon a different footing from donations in 
the proper sense of the term, and do not, according 
to Voet (39, 6, 17), require registration at all. 
It was this class of donations which was dealt 
with in the case of Brink v. Va/n der Byl (1 
Menz., 662), and Melck v. Bavid (8 Menz., 
468). In regard to donations proper, as distin- 
guished from remuneratory donations, the 
conclusions to be deduced from the latest 
authorities aro these. They require registration 
in the Deeds Office if they exceed the sum of 
£600 in value, and they are invalid and revocable 
to the extent of such excess unless so registered. 
A donation by a father to his minor child is 
completed by such registration whaitever the 
ftmount may be. An unregistered donation by 



a father to his minor child is not deemed 
to be complete without clear proof of ac- . 
ceptance by the child or by the father on 
behalf of the child. Acceptance by the 
child alone is sufficient if he has reached the 
age of puberty, but if he is under that age. 
the gift must be accepted by the Courti the 
Master, or the father on hia behalf. Whether 
the minor be under or above the age of puberty 
the complete acceptance by the father would be 
sufficient, but such acceptance would be incom- 
plete, as such, without some act done by the 
father to prove his intention to divest himself 
of the property, such as delivery to a third 
person, transfer in the Deeds Office, or, in the 
case of a cession of action, notice to the debtor 
of such cession to the child. In the present 
case the donation of £334 was made to the 
plaintiff's wife when she was still under twelve 
years of age, but it was made by way of deposit 
in the Savings Bank. The bank was authorised 
by law to receive deposits from parents on 
behalf of their minor children, and the deposit 
therefore by the father of the plaintiff's wife 
coupled with the receipt of the money by the 
bank to her credit, constituted, in my opinion, 
a sufficient acceptance by the father on her 
behalf. The next question is whether she is 
entitled to recover the sum depositea from the 
executors of her father's estate. It appears 
that after she had reached the age of rixteen 
she accompanied her father to the bank and 
signed a receipt for £234, being the amount then 
withdrawn by him. Three years afterwards ahe 
in the same way consented to the father's 
withdrawal of £100. The gift having been 
complete she was entitled, on coming of age, to 
demand an account from her father of the 
moneys so withdrawn. Nothing of the kind 
was done, but for years she and her huaband 
occupied a house of her father's rent free and 
received other benefits from him. Her husband 
became Insolvent during her father's lifetime, 
but in the schedules no mention was made of 
the claim which she now alleges she then had 
against her father. His estate was perfectly 
solvent and if the sum of £334 had been 
recovered by the estate of plaintiffs husbandi 
to whom she was married in community, that 
estate would also have been perfectly solvent. 
No action was brought against the father 
during his lifetime, but after his death the 
amount is sought to be recovered out of his 
estate. The plaintiff knew that her father had 
withdrawn the money and thus revoked the 
gift. Her assent during her minority did not 
deprive her of the right to the money. But her 
acts after she became of age and until her 
father's death cannot be reconciled with her 



193 



pnmt demand. Xf tihe demand had been made 
io ha father's lifetlxxie be mi^rht have been able 
toihowtbat all Uie money withdrawn had been 
MtnaUy expended on lier l>ehali. She must, in 
my opinioii, be "held to liave ratified her f ather*B 
Rvoeatkn of liis ^ttj and there must be 
tbtoliLtion from tlie instance with ooste. 

Mr. Juakioe Uplngton said : I am fully of the 

lime opinion, lofr the reaeons stated by his lord- 

diip. I am satisfied that Mis. Slabber knew her 

pontknboih before and after the repudiation by 

ber father, and that her oonduct before and 

after the took action with re^^ard to the witb- 

drawai of these deposits amounted to aoqui- 

flBoeaoe on her part of what her father had done. 

\ tP^*«itifrB Attorney, C. C. de Villiers ; 

Defendant's Attorney, B. M. Moore.] 



YKBHAJLK'B SXECUTKIX V. 
VKRMAJLK'B EXECUTOBa 



I 1895. 
^May 27th. 
June 6th. 



This was an action instituted by Oatharina 
JZizabeth Yermaak, in her capacity as ezeou- 
faxK testamentary of the estate of her Jate 
hfiabaad, Theodorus Daniel Vermaak, to whom 
abe was married in community, againit Comelis 
Jobannes Vermaak, in his capacity as executor 
dative of the estate of the late Johannes 
Aiiriannfl Vermaak and against the same defen- 
and Johannes Adiianus Vermaak in their 
bisacitj as executors testamentary of the estate 
o£ the late Martha Maria Vermaak. 

Xhe declaration alleged that on 12th July, 

1B^2^ J. A. Vermaak and Martha Maria 

kk (bom Muller), who were married in 

lunity, executed a mutual will. 

Under the will they appointed each the other, 

is the first dying appointed the suririvor 

of all the property to be left by the first 

dxing, under the proviso that the survivor 

ebonld be boimd to educate and maintain the 

cbildren of their marriage imtil their majority, 

Kuarriag^e, or other approved condition, and 

directed that in case the survivor should enter 

into a second marriage the estates should be 

appraised without the minors' portions being 

pud out. The survivor was appointed guardian 

of the minor heirs. By subsequent codicils, 

dated 16th February, 1836. and 7th December, 

1S47, they altered the provisions of the will in 

eertain respects. 

The testator died in 1848 leaving the will and 
oodieib in full foroe and effect. Martha Maria 
Vermaak adiated under the will and remained 
in posBcaeion of the whole estate. At the date 
of the testator's death there were eleven 
children issue of the marriage, of whom the 
hnnliaBd of the plaintiff was one. Thereafter 
or •bcmt Blst Peoember, 18£2, Marthi^ Maria 



I 



Vermaak executed a will whereunder she 
appointed as heirs of her property the children 
of herself and of the said J. A. Vermaak, her 
late husband, and the descendants of such 
children as had predeceased her in place of 
their parents, upon condition that the said 
children or their descendants should pay into 
her estate whatever was due by them to her, as 
will appear from the copy of the will annexed 
marked " D." 

The said Martha Maria Vermaak died on 
13th February, 1893, without having altered or 
revoked the will last referred to, and the defen- 
dants, who were appointed executors there- 
imder, took out letters of administration and 
have dealt with the whole of the assets left at 
her death under the said will and in terms 
thereof, and have filed an account in accordance 
therewith. The said Cornells Johannes 
Vermaak has been appointed executor dative in 
the testator's estate. 

The said J. D. Vermaak died on or about 
18th February, 1886, leaving a will whereunder 
the plaintiff was appointed executor ; his estate 
was by the said will left to his children. 

The plaintiff contends that the will executed 
by Martha Maria Vermaak on 31st December, 
1892, is invalid in so far as it oonfiicts with the 
mutual will, and that the estate left at the death 
of Martha Maria Vermaak must be distributed, 
in terms of the said mutual will amongst the 
heirs, namely the children of the testators and 
the descendants of such as survived the testator 
but predeceased the testatrix. 

The paternal inheritance devolving upon the 
late Theodorus Daniel Vermaak out of the 
estate of his father, Johannes Adrianus 
Vermaak, and also the inheritance which may 
devolve upon him out of the estate of hiis 
mother, Martha Maria Vermaak, were settled 
by ante-nuptial contract dated 23rd July, 1862, 
upon the plaintiff. 

The plaintiff claimed : 

(a) A declaration of rights under the mutual 
win aforesaid. 

(b) A declaration that the will of the said 
Martha Maria Vermaak dated 31st December, 
1892, is invalid in regard to its distribution of 
the assets of the estate in conflict with the terms 
of the mutual will : or in the alternative, that 
the said Martha Maria Vermaak had only the 
right to dispose of half of the joint estate by 
the said will of the 2i8t December, 1892. 

(^c) That the account filed by the defendants 
be amended in accordance with the orders made 
upon prayers (a) and (b), 

(d) Alternative relief and costs. 

The defendants in their plea admitted the 
death of the testator in 18i8, leaving the wiU 



194 



ukd codicilR in full force ; they admitted that 
Martha Maria Yermaak remained in poflseerion 
of the whole estate during her lifetime with 
theoonsentof all the children; they raid that 
Bhe BO took possession as to half of the estate 
hy virtue of her rights as being married in com- 
munity of property to the testator and as to the 
other half by virtue of the terms of the will. 

They admitted the execution by Martha 
Maria Yermaak of the second will. 

They said that Theodorus Yermaak by his 
will bequeathed his estate not to his children, 
bat to the plaintiff. 

They said that Martha Maria Yermaak had 
the right to execute the will dated Blst July, 
1892, and they said that the heirs instituted 
under that will are the same heirs as were insti- 
tuted under the mutual will dated 7ih July, 
1882. 

After the death of tiie husban^l, the testator, 
in 1848, the said Martha Maria Yermaak 
remained in possession of the entire joint estate 
during the minority of her children and there- 
after until the date of her death, and she did so 
with the full knowledge and consent of her 
children who became majors, of whom the late 
Theodorus Daniel Yermaak was one. 

That the said Martha Maria Yermaak per- 
sonally and in her capacity as executrix afore- 
said of the joint estate of herself and her 
deceased husband, as one estate, made advances 
to certain of . her children as against their 
paternal and maternal inheritances, and the 
said children by virtue of dealings with her in 
respect of the said joint estate became indebted 
both to the said Martha Maria Yermaak in her 
private capacity and to her in her capacity as 
executrix in various sums of money. 

Amongst others the late Theodorus Daniel 
Yennaak was at the date of his death indebted 
to the joint estate of his parents in the sum of 
jS731, or thereabouts ; the said debt arose from 
the purchase price of 600 sheep sold to and 
taken over by the late Theodorus Daniel 
Yermaak at 10s. each, and from the hire of 
certain sheep and a certain farm which belonged 
to the said joint estate. The said debt has been 
brought up as an asset in the accoount filed by the 
executors of the late Martha Maria Yermaak. 

Even if the framing of the account filed by 
the executors of the said Martha Maria 
Yermaak were altered so as to show a separate 
distribution of the testator's share of the joint 
ettate the amount of inheritance coming to the 
said late Theodorus Daniel Yermaak from the 
estate of his parents would be the same amount 
as is shown in the account as already filed. 

Wherefore they prayed that the plaintiff's 
claim mi^ht be dismissed with costs. 



^ 

Issue was joined on these pleadings. 

Mr. Searie, Q.C., and Mr. Watermeyer 
appeared for the plaintiff. 

Mr. Rose-Innee, Q.C., and Mr. Oraham for 
the defendants. 

The case resolved itself into one of aoeoani. 

The Court ordered the account to be amended 
by expunging an item of £79. The oommiaslon 
to be reduced to £148 ISs. lOd., costs to be paid 
out of the estate of Martha Maria Yermaak. 

[Plaintiff's Attorney, Gus. Trollip; Defen- 
dants, Attorneys, Messrs. Fairbridge, Ardeme ic 
Lawton. 



SUPREME COURT. 



[Before Sir J. H. DB YiLLnaw, K.O.M.G. (Chief 
Vustice), and Mr. Justice Upington, 
K.C.M.G.] 

S1895. 
May 28th. 
June 26th. 
„ aeth. 
July 2nd 

Diamond mines — Mnintenaiice o€ order and 

good government — Leases — Rent — Con - 

tribution payable 

Held, that the defendant company was mot 
liable to pay a contribution to Oovemmeni 
for the maintenance of order and good 
government in respect of claims leased from 
which no rent had been received by the 
company 



This was an action instituted by the Assistant 
Treasurer and Receiver-General of the Colony 
against the defendant company for the sum of 
£2,636 16s. 

The declaration alleged that the defendant 
company is registered in this colony with 
limited liability, and is the regiBtered owner of 
certain farms in Qriqualand West, whereon are 
situated the duly proclaimed mines of Du Toil's 
Pan and Bultfontein. 

That before the agreement hereinafter men- 
tioned the Government of the Province of Qri- 
qualand West, and after the annexation to this 
colony of the said Province, the Government of 
this colony, collected the revenues of the said 
mines, more especially the licence moneys due 
in respect of ^aims therein, and lawfully 



195 



dimiigied ftgrniiiBt the defiendftnt oompany the 
smn of 2b. 6d. per month in respect of each 
claim by way of fees for good goyemmeBt^ 

That in or about the month of April, 1881, it 
was agreed between the Colonial Government 
and the said company ^at the said Oovernment 
ihoold ceaee to collect thercTennes of the mines 
on the property of the said company, and that 
the said company shonld collect themselyee all 
BQcfa moneys, and should pay to ^e Government 
at the end of each month 2b. for every claim 
duly licensed during such month in order to de- 
fray the cost of good government at such mines. 
The said agreement was existing when the 
Act No. 19 of 1888 was passed and was in terms 
of the proviso to section 77 of the said Act, not 
interfered with or affected by the passing of the 
said Act, bnt continued to be and is of full force 
and effect. 

In accordance with the terms of the said 
agreement there are due, owing and unpaid to the 
Colonial Government various sums of money in 
respect of claims duly licensed in the mines 
aforesaid, such sums amounting in all to the 
sum of £2,696 16s. 

That notwithstanding lawful demand, the 
defendant company failed and neglected to pay 
the paid sum or any part thereof. 
The claim was for £2,686 16s. with costs. 
The defendants in their plea denied that they 
are registered as a company in this colony, and 
taid that the title to the farms referre*! to in 
the declaration contains no reservation of 
predouB stones in favour of the Crown. 

They said that the charge of 2b. 6d. per month 
was made under and by virtue of the powers 
and provisioBfl contained 'n an Oniinance (No. 
17 of 1880) of Griqualand West, duly assented 
to by the Governor and confirmed by Her 
Majesty, and not otherwise, and that the 
Government of the Province of Griqualand, 
West charged the defendants with the said sum 
of 2b. 6d., deducting the same from monthly 
lieenoes, rents, or royalties, in accordance with 
^ provisions of the said Ordinance, and not 
otbowise. 

They denied that the agreement set out in the 
foorth paragraph of the declaration was made 
between them and the Government in or about 
the month of April, 1881, or at all. 

They denied the 5th paragraph of the de- 
olara^n, and said that by the agreement 
therein referred to it was agreed between the 
Oovernment and the defendants that the sum of 
^ per month should be paid by the defendants 
to the Government out of the moneys collected 
or received in respect of licences, rents, or 
raytlties, and not otherwise, and that no such 
iBoneyd have been oolleeted or received. 



The defendants further said that the Govern- 
ment had no power or authority to make an 
agreement with the defendants for the payment 
by them to the Government of a fixed sum for 
the maintenance of order and good government, 
otherwise than by way of and as a deduction 
from sums collected or received for licences, 
rents, or royalties. 

They finally denied that the amount claimed 
was due to the Government and prayed that the 
claim might be dismissed with costs. 

Issue was joined on the replication. 

The Attorney-General (Mr. Sohreiner, Q.C.) 
and Mr. Giddy appeared for the Government 

Mr. Solomon, Q.C., and Mr. Searle, Q.O., for 
the company. 

The oorrespondence having been put in, 

Edward A. Judge, sworn, states : I am C.C. 
and Registrar of Claims at Kimberley. I was 
appointed Registrar of Claims at the end of 
1889. Between October, 1884, and my appoint- 
ment Mr. Smith was Registrar. Between those 
periodis the defendant company collected for 
the Government. The amount claimed for 
Gordon Company in Du Toit*8 Pan and North- 
Bastem Bultfontein was paid by defendants* 
manager in 1891, being balance due up to May. 
Deductions were caused by sums I had not 
given credit for. When adjusting account I 
was aware of compromise between plaintiffs 
and defendants, but did not know effect of it. 
I had before me the letter of defendants saying 
that they had " reverted " to practice of pa3ring 
only on amount received. 

When Act 19 of 1888 was passed I believe 
Government had no other agreement such as 
that with defendants of 1881. 

Cross-examined : I was not in Kimberley in 
1880. From 1889 defendants* manager used to 
furnish accounts showing amoimts received lor 
rent and calculating amount of 2s. per claim on 
amounts received, This was the uniform 
practice during my holding of office of Registrar 
of Claims. The New Gordon Company did not 
register their lease until 1893 although it com- 
menced in 1891. They may have been regis- 
tered with Registrar of Claims but I do not 
think they were. 

In September, 1891, when defendant's man- 
ager paid I do not think that he had 
received rents for all claioLs. The payment 
was in respect of 218 claims in New Gordon 
Company and 66 in North-Bastem Bultfontein. 
It was only in 1892 that the 606 claims were 
registered. 

By the Chief Justice: I accepted payments 
on the basis of the account put in. 

Mr. Solomon admits that the defendants' 
contention is that they are not liable when they 



196 



receive nothing, but that if they receive any- 
thing they are liable. 

Copy of defendants* form of lease put in. 

Qovemment case closed. 

For the defence, 

John Blades Currey, sworn, states: I have 
been manager of the defendant company since 
IstMay, 1884. I succeeded Kilgour. Previous 
to 1880 Government claimed minerals but it 
was decided otherwise. I first acted as Registrar 
of Claims and Collector of Revenue. My ap- 
pointment was cancelled at my request in 1884. 
While I was collector I made up an account at 
the end -of every month showing rent received 
and 2s. per claim paid to Government for every 
80b. received. In no month was entire rent 
paid and I never paid the 2s. in such cases. I 
have adopted the same course up to the present. 
Our lessees pay full rent or nothing. In respect 
of some claims nothing is paid to us. The 66 
claims referred to were registered in Claim 
Office and I have no doubt I received rent. The 
form of account put in by Mr. Judge is correct. 
I do not tbink I have received any rent from 
Gordon Company. Whenever I received rent I 
paid Government accordingly. The Korth- 
Eastem Bultfontein Company is in liquidation. 
I proved in liquidation for claim rent (£23, 182) 
on 671 claims. When liquidator transferred 
any claims to purchasers he paid us and on that 
we have tendered to plaintiffs. 

Cross-examined: Defendants agreed to ex- 
onerate North-Eastem Bultfontein from rent 
from 1st December, 1893. I have no instruc- 
tions as to claims of plaintiffs in regard to that. 
We agreed to exoneration because liquidator 
agreed to postpone sale of assets. When I 
ceased to be collector I considered I was still 
liable to account to Government and I did w. 
I owed that duty to my company. I do not 
think I have received any rents from New 
Gordon Company. I only do what my com- 
pany tells me. I have not taken any steps to 
cancel lease or to collect arrears. My company 
informed me they would arrange the matter in 
, London. I do not know what I paid in Decem- 
ber, 1891. I cannot say what I received from 
Gordon Company, but there was something 
received. I do not think I made a full settle- 
ment in September, 1891. I may have acquiesced 
in portion of the Government contention. 

Re-examined : I presiune the New Gordon 
Company cannot pay as they have not done 
so. 

By the Chief Justice : When I was collector 
I never paused to inquire whether I was paying 
under the Act or under the agreement. I 
followed the practice of paying on amount 
collected. X can show that no money was paid to 



Govematent on licensed claims from which 
no rent was received, and the Government 
knew it. 

Further correspondence put in. 

Defendants' case closed. 

Mr. Schreiner, Q.O., A.G. : An historical 
survey of the Griqualand West Law- as it was in 
1881 is necessary. See section 29 of Proclama-* 
tion No. 5 of 1871, also section 2 and section 3 
of Griqualand West Ordinance, No. 17 of 1880. 
In 1881, the ain'eement on which this action is 
founded was entered into. Now this contract is 
the only one which has been entered into by the 
Government with a private person. But Act 19 
of 1833, section 77 (particularly the proviso), 
seems to settle the case for the Government 
clearly, " for it exempts any agreement with any 
private person.'* That Act contemplates that 
books should be kept and shown, and that 10 
per cent should be paid : i,e., where there is no 
agreement. But in the agreement there is no 
word denoting obligation on the part of the 
company to show books or to account for the 
revenue received as rents, licences, &c. The 
company has indeed furnished lists of claims. 
Now no Act mentions an amount of 2s. per 
claim, and if it is paid at all it can only be 
under the agreement which is now denied, 
though the company right through the corre- 
spondence acts on and admits that agreement. 
The whole case is in the correspondence, no 
argument is necessary. 

Court: Has the Government a right to put 
an end to the agreement? If so cannot, the 
company do so also ? 

Mr. Schreiner : Yes. 

Mr. Solomon, Q.C. : The correspondence and 
the transaction must be taken as a whole. Now 
the contract in August, 1880, cannot be termi- 
nated except by Act of Parliament, being em- 
bodied in the Ordinance of 1880, which is still in 
force. From August, 1880, till April, 1881, the 
Government collected the rents, and took 28. 6d. 
per claim on claims on which rents were actually 
received. Till 1881 the question of collecting 
stood over. Then the company was authorised 
by the Government to collect rents on their own 
licensed claims ' for good government " at the 
rate of 2b. per claim, the Government abandon* 
ing 6d. as a consideration for the oompany 
coUecting. No new principle was introduced, 
the principle was the same as that in the 
Proclamation 6 of 1871, and in Act 19 of 1883. 
See section 77 of that Act. The rent is collected 
for good government on licensed claims only on 
which rent is received, but the collection is by 
private p>ersons and not by the Government, and 
the proviso does not affect the necessity of 
keeping books or accounts by the private owner 



4 »>^ 

1^7 



whether he be the Exploration Company as 
imder the agreement or others. The proviso 
only Btatee ** this section is not to affect any 
private agreement respecting the amount," and 
the correspondence shows this was the view of 
the GoTemment. 

The Attorney-General contends that the 2b. 6d. 
per claim is due on every claim, and that it is 
fixed high and intended to apply to every claim 
because Government cannot insist on the pro- 
duction of books and accounts. But these 
would be furnished if Government chose to 
insist. 

Up to April, 1881, the Government received 
only 2b, 6d. per claim licensed on which rent 
was paid. The Government regularly thereafter 
received accounts from the Exploration Com- 
pany calculated thus : **0n so many claims we 
have received rent, there are so many 2s. there- 
fore due to you." The Government knew 
perfectly well how many claims there were in 
the minee, the Civil Commissioner was also 
Registrar of Claims, yet this practice continued 
till 1891. 

The Chief Justice : Supposing the Exploration 
Company become interested in and start a 
Diamond Mining Company, and then charge no 
rentB on the claims ? 

Ur. Solomon : Could they do so 7 The private 
owner need charge no rents at all ; all the 
Government required was to see his books and 
simply receive a pro rata share of the proceeds. 
LicenBcd claim means one on which, while 
licensed, rent is due and payable. The Govern- 
ment found their case on the contract not 
OB the Ordinance, though indeed the latter 
Is really based on the contract. 

The company is no more estopped by its 
letters (through Mr. Currey) relied on, than the 
Government is by the Civil Commissioner 
reoeiving the amounts as described above. 

Mr. Schreiner : The only agreement in exis- 
tence was that of April, 1881. But Mr. Solomon 
refers to documentary evidence prior to the 
Ordinance ot 1880, which he takes as constituting 
•D agreement. The proviso of section 77 of the^ 
Act of 1888 applies to the agreement of 1881 
which IB l^e only one in existence. From August, 
1880, daimholders began to get flxity of tenure 
by sobBtitution of leases for licences. Up to 
1801 tiie company was vigilant and got the 
tents in, and therefore it was paid to the 
C^ovemment on the basis of the licensed claims 
or on basis of claims on which the rent was 
■ctually paid. Then came the floating under 
the Exploration Company of the Gordon and 
Korth-Bast Bultfontein and large arrear rents 
Iweame due ; then the Government insisted on 
i^ company paying on the basis of the 



contract, which they interpreted as referring to 
every licensed claim. After correspondence the 
manager paid up, but then the Board in England 
turned on him and refused to endorse his 
action. Section 29 of the Ordin ance allows the 
Government to collect the total amount due 
(^pro rata to the number of claims licensed) 
from the total amount obtained as rents. The 
**^rf vaiorem^' and the **good government" 
cases were withdrawn with a view to this 
Ordinance being passed, which then gave the 
Government the right as before stated to deduct 
a fixed amount of 2b. 6d. per claim. 

Cur. ad vnU. 

Pottea (July 2nd). 

Judgment was delivered. 

The Chief Justice paid : The Government by 
this action seek to recover from the London and 
South African Exploration Company the sum of 
£2,636 16s., being the balance alleged to be due 
by the company as their contribution towards 
defraving the expenditure necessary for the 
maintenance of order and good government at 
DvL Toit*s Pan and Bultfontein mines. The 
defendants do not deny their liability to a con- 
tribution, but they maintain that the amount 
demandable in respect of any claim leased or 
licensed by them cannot exceed the amount of 
rent received by them in respect of such daim. 
The Government, on the other hand, contend 
that the only test of the company's liability in 
respect of any claim is whether it is licensed or 
not, and they base their contention upon a con- 
tract entered into by correspondence between 
the Government and the company in the year 
1881. The defendants, by their counsel, admit 
that the contract of that year must decide the 
respective rights of the parties, and the 
only question to be determined will be 
what is the true construction of that contract. 
Before considering the terms of the contract, it 
will be useful to trace the course of legislation 
and the dealings between the parties which led 
up to the contract. In the year 1871 Her 
Majesty's sovereignty was declared over the 
Province of Griqualand West and. inasmuch as 
large numbers of diggen had settled there in 
search of diamonds, it became necessary for the 
High Commissioner to cBtablish rules and 
regulations under which the search or digging 
for diamonds should be carried on. Accordingly 
Proclamation No. 6 of 1871 was issued, which 
established such rulee and regulations, and 
further provided for the establishment of 
diamond-fields upon Crown land, and for the 
appointment of inspect